Exchange Right. (a) Subject to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right (the “Exchange Right”), exercisable (i) on or after the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount. (b) The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2. (c) A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership Units unless such Limited Partner then holds less than one thousand (1,000) Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner. (d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units. (e) Any Assignee of a Limited Partner may exercise the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee. (f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partner.
Appears in 13 contracts
Samples: Limited Partnership Agreement (Independence Realty Trust, Inc), Limited Partnership Agreement (American Realty Capital New York Recovery Reit Inc), Limited Partnership Agreement (Carter Validus Mission Critical REIT, Inc.)
Exchange Right. (a) Subject to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right (the “Exchange Right”"EXCHANGE RIGHT"), exercisable (i) on or after the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating PartnershipIPO, to exchange on a Specified Exchange Date all or a portion of the Partnership OP Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”"EXCHANGING PARTNER"); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership OP Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership OP Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership OP Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee of a Limited Partner may exercise the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(fe) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partner.
Appears in 12 contracts
Samples: Contribution Agreement (Tower Realty Trust Inc), Contribution Agreement (Tower Realty Trust Inc), Contribution Agreement (Tower Realty Trust Inc)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 8.5(d) and 2.5 hereof8.5(e) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts Partner, other than the General Partner, shall have the right (the “"Exchange Right”), exercisable (i") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “"Exchanging Partner”"); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.5(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.5(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner's exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall treat the transaction between the General Partner, and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.5(a) and 8.5(b), a Limited Partner shall not be satisfied entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the Operating Partnership General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, shares of the General Partner in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in shares of the General Partner being owned by fewer than 100 Persons (determined without reference to any rules of attribution and under the definition of "Person" in the Articles of Incorporation), except as provided in the Articles of Incorporation, (iii) result in the General Partner being "closely held" within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant of the General Partner's, the Partnership's, or any direct or indirect subsidiary (including, without limitation, partnerships, joint ventures and limited liability companies) of the General Partner's or the CompanyPartnership's real property, as within the case may bemeaning of Section 856(d)(2)(B) of the Code, (v) otherwise, directly or indirectly, cause the General Partner to fail to qualify as a REIT or (vi) cause the acquisition of REIT Shares by such Assignee Partner to be "integrated" with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.5(c); provided, however, that in the event such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "Restriction Notice") to each of the Limited Partners holding Partnership Units, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid having the Partnership be treated as a "publicly traded partnership" under section 7704 of the Code.
Appears in 4 contracts
Samples: Limited Partnership Agreement (Dividend Capital Trust Inc), Limited Partnership Agreement (Dividend Capital Trust Inc), Limited Partnership Agreement (Dividend Capital Inc)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d) and 2.5 8.05(e) hereof, and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i"EXCHANGE RIGHT") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership; provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”"EXCHANGING PARTNER"); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.05(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), the General Partner shall have no obligation to the Exchanging Partner or the CompanyPartnership with respect to the Exchanging Partner's exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the case General Partner may bereasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.05(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being "closely held" within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner's, the Partnership's, or a Subsidiary Partnership's real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Assignee Partner to be "integrated" with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.05(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "RESTRICTION NOTICE") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under Section 7704 of the Code.
Appears in 4 contracts
Samples: Limited Partnership Agreement (Behringer Harvard Reit I I Inc), Limited Partnership Agreement (Behringer Harvard Opportunity REIT I, Inc.), Limited Partnership Agreement (Behringer Harvard Reit I Inc)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 8.5(d), and 2.5 hereof8.5(e), and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership; provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.5(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.5(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the CompanyPartnership with respect to the Exchanging Partner’s exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the case General Partner may bereasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or a Subsidiary Partnership’s real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Assignee Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.5(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are reasonably necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
Appears in 4 contracts
Samples: Limited Partnership Agreement (Cole Credit Property Trust V, Inc.), Limited Partnership Agreement (Cole Office & Industrial REIT (CCIT II), Inc.), Limited Partnership Agreement (Cole Credit Property Trust V, Inc.)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 8.4(d), 8.4(e) and 2.5 hereof8.4(f) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.4(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
(f) Notwithstanding anything else in this Agreement to the contrary, Strategic Storage Advisor II, LLC is prohibited from exchanging or otherwise transferring the Partnership Units purchased by it on August 2, 2013 for $200,000 cash, so long as it continues acting as the Advisor pursuant to the Advisory Agreement.
Appears in 4 contracts
Samples: Limited Partnership Agreement (Strategic Storage Trust II, Inc.), Limited Partnership Agreement (Strategic Storage Trust II, Inc.), Limited Partnership Agreement (Strategic Storage Trust II, Inc.)
Exchange Right. (a) Subject From and after the end of the Restricted Period, a holder of Exchangeable Units shall, from time to Sections 2.2time in accordance with this Article 2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts have the right to require the Partnership to repurchase (the “Exchange Right”), exercisable (i) on any or after the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets Exchangeable Units of such series held by such holder for either (A) the Operating PartnershipExchanged Shares or (B) the Cash Amount, the form of consideration to exchange be determined by the General Partner for and on a Specified Exchange Date all or a portion behalf of the Partnership Units held by such Limited Partner at an exchange price equal to and in its sole discretion. Written notice of the determination of the form of consideration shall be given to the Cash Amountholder of the Exchangeable Units exercising the Exchange Right no later than 5 Business Days after receipt of a given Exchange Notice.
(b) To exercise the Exchange Right, the holder shall present and surrender at the office of the Partnership (or at any office of the Registrar and Transfer Agent as may be specified by the Partnership by notice to the holders of Exchangeable Units) (i) a duly executed Exchange Notice and (ii) the certificate or certificates, if any, representing the Exchangeable Units which the holder desires to have exchanged, together with (iii) such additional documents and instruments as the Registrar and Transfer Agent may reasonably require pursuant to its standard and customary practices (but, in any event, excluding any representations and warranties other than as to ownership and authority) or as required by law (e.g., Internal Revenue Service Forms W-8 or W-9); provided, however, that, with respect to any exercise of the Exchange Right prior to the third anniversary of the Unit Effective Time, unless waived by Holdings, it shall be a further condition precedent to the obligation of the Partnership to repurchase such Exchangeable Units, and the holder of such Exchangeable Units shall not be permitted to exercise an Exchange Right, unless: (x) Holdings has received a written opinion (a “7874 Opinion”) of Ernst & Young LLP (or if Ernst & Young LLP is unwilling or unable to perform, another independent nationally recognized law or accounting firm) (the “Tax Firm”) to the effect that the exercise of such Exchange Right should not cause Holdings to be treated as (1) a “surrogate foreign corporation” (within the meaning of Section 7874(a)(2)(B) of the Code) or (2) a “domestic corporation” (within the meaning of Section 7874(b) of the Code) (including, for the avoidance of doubt, any successor sections of the Code with respect to (1) and (2) above following any change in law) and (y) Holdings’ independent auditor has determined (an “Auditor Determination”) that no reserve shall be required for financial accounting purposes (pursuant to Financial Accounting Standards Board Interpretation No. 48, as such guidance may be modified by future FASB interpretations, statements, or other FASB guidance) relating to Code Section 7874 of the Code as a result of the exercise of such Exchange Right. The Exchange Right Notice shall be exercised pursuant to a Notice (A) specify the number of Exchange delivered to Exchangeable Units in respect of which the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who holder is exercising the Exchange Right (the “Exchanging PartnerSubject Units”) and (B) state the Business Day on which the holder desires to have the Partnership exchange the Subject Units (the “Exchange Date”); provided, howeverthat (x) the Exchange Date must be no less than 8 Business Days and no more than 10 Business Days after the date on which the Exchange Notice is received by the Partnership (unless otherwise extended by Holdings in connection with obtaining the 7874 Opinion and Auditor Determination as provided herein) and (y) each holder of Exchangeable Units, that the Company, on behalf of the Operating Partnershiptogether with its Affiliates, may elect, after a submit only one Exchange Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2per calendar month.
(c) A Limited Partner may Holdings shall act in good faith and use commercially reasonable efforts to obtain the 7874 Opinion and the Auditor Determination as soon as reasonably practical following the exercise by a holder of an Exchange Right. In furtherance of the foregoing, to better ensure that the analysis necessary to obtain the 7874 Opinion and the Auditor Determination can be completed as soon as practicable following the date on which a holder exercises an Exchange Right, prior to the end of the Restricted Period, Holdings shall (i) retain the Tax Firm to (a) deliver to Holdings a 7874 Opinion (based on the assumption that the Exchange Right from time to time with respect to part or all Date is the day immediately following the last day of the Partnership Units Restricted Period), or to do all work necessary to render such an opinion and (b) “bring down” or otherwise render such an opinion (assuming no change in law or fact would prevent it from doing so) at each such time that it owns, as selected by a holder exercises an Exchange Right (unless Holdings intends to waive the Limited Partner, provided that, except as provided in 7874 Opinion condition) and (ii) retain its independent auditor to complete the Agreement, a Limited Partner may not exercise work that would be required for the auditor to make the Auditor Determination (based on the assumption that the Exchange Right for less than one thousand (1,000) Partnership Units unless such Limited Partner then holds less than one thousand (1,000) Partnership Date is the day immediately following the last day of the Restricted Period). At the request of any holder of Exchangeable Units, Holdings (after consulting with its auditor and the Tax Firm) will promptly notify such holder (x) whether the 7874 Opinion or the Auditor Determination can reasonably be expected to be obtained based on the facts and law in which event effect at the Limited Partner must exercise the Exchange Right for all time of such request or (y) whether or not the Partnership Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect would be prepared to any Partnership Units so exchanged to receive any distributions paid after waive the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee of a Limited Partner may exercise requirement that the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner shall 7874 Opinion or the Auditor Determination would be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In required in connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partnergiven Exchange Notice.
Appears in 4 contracts
Samples: Exempted Limited Partnership Agreement, Exempted Limited Partnership Agreement (Broadcom Cayman L.P.), Agreement and Plan of Merger (Broadcom Corp)
Exchange Right. (a) Subject to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right (the “Exchange Right”), exercisable (i) on or after the date that is one (1) year after the closing issuance of the Offering Limited Partner’s Limited Partnership Interest or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A Limited Partner (except for the Special Limited Partner) may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership Units unless such Limited Partner then holds less than one thousand (1,000) Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee of a Limited Partner may exercise the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partner.
Appears in 4 contracts
Samples: Limited Partnership Agreement (Independence Realty Trust, Inc), Limited Partnership Agreement (Independence Realty Trust, Inc), Limited Partnership Agreement (Independence Realty Trust, Inc)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 and 2.5 hereof8.5(d), 8.5(e), and subject 8.5(g) and the provisions of any agreements between the Partnership and one or more holders of Common Units with respect to any limitations under applicable lawCommon Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts holder of Common Units shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Common Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Common Units subject to the Notice of Exchange is deliveredpursuant to Section 8.5(b); and provided, to satisfy the further, that no holder of Common Units may deliver more than two Notices of Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) during each calendar year. A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership 1,000 Common Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership 1,000 Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Common Units so exchanged exchanged, to receive any distributions distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Common Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Common Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Common Units. If the General Partner shall elect to exercise its right to purchase Common Units under this Section 8.5(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five business days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Common Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right, including an assignment of the Common Units, and if the General Partner is relying upon the exemption from registration under the Securities Act of 1933, as amended, provided by Regulation D promulgated under the Securities Act of 1933, as amended, or any successor rule, a document pursuant to which the Exchanging Partner makes a representation that it is an accredited investor; provided, however, that if the Exchanging Partner cannot make such representation, then the Exchanging Partner shall have no right to exercise its Exchange Right.
(c) Notwithstanding the provisions of Section 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would, in the determination of the General Partner (i) result in such Partner or any other person owning, directly or indirectly, shares of stock of the General Partner in excess of the Aggregate Stock Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith) or the Common Stock Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code, (v) cause a violation of the Securities Act of 1933, as amended, either for the exchange or other securities offerings, (vi) require such REIT Shares to be registered under the Securities Act of 1933, as amended, (vii) cause the General Partner to no longer qualify as a REIT, or (viii) cause the Partnership to be treated as a “publicly traded partnership” under Section 7704 of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.5(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its commercially reasonable efforts to cause the closing of the acquisition of exchanged Common Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof to each of the Limited Partners, which notice shall state the restrictions the General Partner has instituted in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
(f) Each Limited Partner covenants and agrees with the General Partner that all Common Units delivered for exchange shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be under any obligation to acquire Common Units which are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the transfer of its Common Units to the Partnership or the General Partner, such Limited PartnerPartner shall assume and pay such transfer tax.
(g) With respect to the Contribution Common Units, the Exchange Right provided for in this Article 8 shall not be exercisable or exercised by any holder of Contribution Common Units until such Contribution Common Units have been outstanding for at least two years.
(h) The exercise of an Exchange Right by a Limited Partner will be subject to compliance with securities laws applicable to the exchange and therefore the Exchange Right may not be exercisable in the absence of an effective registration statement or an available exemption from registration.
Appears in 4 contracts
Samples: Limited Partnership Agreement (Resource REIT, Inc.), Limited Partnership Agreement (Resource REIT, Inc.), Limited Partnership Agreement (Resource Real Estate Opportunity REIT II, Inc.)
Exchange Right. (a) 9.4.1 Subject to Sections 2.2the provisions in this Section 9.4 and the provisions of any agreements between the Partnership and one or more Common Limited Partners with respect to Common Units held by them, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Common Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) beginning on or after the date that is one (1) year after Exchange Date, to require the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a Specified Exchange Date all or a portion of the Partnership Common Units held by such Common Limited Partner at an exchange price equal for the applicable Cash Amount to and in be paid by the form Partnership (with the Cash Amount determined 60 days after the receipt of the Cash Amount.
Exchange Notice for purposes of this Section 9.4), provided that such Common Units (bor the LTIP Units from which they were converted) shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Common Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if CCI elects to purchase the Common Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 9.4.2; and provided, further, that no Common Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Common Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership 1,000 Common Units unless or, if such Common Limited Partner then holds less than one thousand (1,000) Partnership 1,000 Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Partner. The Exchanging Partner shall have no right, with respect to any Common Units so exchanged, to receive any distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date.
9.4.2 Notwithstanding the provisions of Section 9.4.1, a Common Limited Partner that exercises the Exchange Right shall be deemed to have also offered to sell the Common Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Common Units by paying to the Exchanging Partner either the Cash Amount or the REIT Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Common Units. If the General Partner shall elect to exercise its right to purchase Common Units under this Section 9.4.2 with respect to the Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 9.4.2, the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 9.4.2, the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Common Units to the General Partner.
(d) An 9.4.3 Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right, including an assignment of the Common Units, and if the General Partner is relying upon the exemption from registration under the Securities Act provided by Regulation D promulgated under the Securities Act, or any successor rule, a document pursuant to which the Exchanging Partner makes a representation that it is an accredited investor; provided, however, that if the Exchanging Partner cannot make such representation, then the Exchanging Partner shall have no right to exercise its Exchange Right.
9.4.4 In case of any reclassification of the REIT Shares (including, but not limited to, any reclassification upon a consolidation or merger in which CCI is the continuing corporation) into securities other than REIT Shares, for purposes of Section 9.4.2, the General Partner may thereafter exercise its right to purchase Common Units for the kind and amount of shares of such securities receivable upon such reclassification by a holder of the number of REIT Shares for which such Common Units could be purchased immediately prior to such reclassification.
9.4.5 Any REIT Shares issued to an Exchanging Partner upon the exercise by the General Partner of its right to purchase Common Units under Section 9.4.2, shall not be required to be registered under the Securities Act, unless subject to a separate agreement between the General Partner and the Exchanging Partner.
9.4.6 Notwithstanding the provisions of Section 9.4.1 and 9.4.2, a Common Limited Partner shall not be entitled to exercise the Exchange Right if such exercise would result in (i) any Person owning, directly or indirectly, shares of CCI in excess of the Shareholder Limitation (or, if applicable, the Excepted Holder Limit), (ii) the REIT Shares being owned by less than 100 persons (determined without reference to any rules of attribution), (iii) CCI being “closely held” within the meaning of Section 856(h) of the Code, (iv) CCI owning, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code, (v) a violation of the Securities Act either for the exchange or other securities offerings, (vi) the REIT Shares being required to be registered under the Securities Act, (vii) CCI no longer qualifying as a REIT under the Code or (viii) in the belief of the General Partner, the Partnership being treated as a “publicly traded partnership.” The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 9.4.6.
9.4.7 Each Common Limited Partner represents, warrants and certifies that it has, and will have, marketable and unencumbered title to its Common Units, free and clear of any liens or the rights or interest of any other person or entity and covenants and agrees to deliver its Common Units free of any such items. Each Common Limited Partner further represents, warrants and certifies that it has, and will have, the full right, power and authority to transfer and surrender its Common Units and that it has obtained, and will obtain, the consent or approval of all persons or entities, if any, having the right to consent to or approve of such transfer and surrender. The General Partner shall have no obligation to acquire Common Units (i) to the extent that any such Common Units are subject to any liens, encumbrances or the right or interest of any other person or entity or (ii) in the event that the Common Limited Partner shall fail to give the General Partner adequate assurances that such Common Units are not subject to any such liens, encumbrances or the right or interest of any other person or entity or shall fail to fully indemnify the General Partner as set forth below; provided, however, the General Partner may, in its sole discretion, acquire Common Units subject to a lien, encumbrance or right of another person or entity and in such case the General Partner shall reduce the Cash Amount (or REIT Shares Amount) paid to the Common Limited Partner by the amount of the lien, encumbrance or right of any other person or entity. The Common Limited Partner agrees to indemnify and hold the General Partner harmless from and against any and all liabilities, charges, costs and expenses relating to such Common Limited Partner’s Common Units which are subject to the Exchange Right including, without limitation, with respect to any Partnership liens, encumbrances or rights or interests of other persons or entities. Each Common Limited Partner further agrees that, in the event any state or local transfer tax is payable as a result of the transfer of its Common Units so exchanged to receive any distributions the General Partner pursuant to the Exchange Right, such Common Limited Partner shall assume and pay such transfer tax.
9.4.8 Any Cash Amount to be paid after to an Exchanging Partner pursuant to this Section 9.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to obtain additional funding to be used to make such payment of the Cash Amount by the issuance of additional REIT Shares or otherwise. Notwithstanding the foregoing, the General Partner agrees to use its commercially reasonable efforts to cause the closing of the exchange to occur as quickly as reasonably possible.
9.4.9 Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Common Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof to each Common Limited Partner and each other Person that holds interests in the Partnership convertible for, or other instruments exercisable for, Common Units.
9.4.10 A fee may be charged in connection with an exercise of Exchange Rights pursuant to this Section 9.4 to cover the expenses of the Partnership or the General Partner.
9.4.11 The exercise of an Exchange Right by a Common Limited Partner will be subject to compliance with securities laws applicable to the exchange and therefore the Exchange Right may not be exercisable in the absence of an effective registration statement or an available exemption from registration.
9.4.12 Holders of LTIP Units shall not be entitled to the Exchange Rights provided for in Section 9.4 of this Agreement, unless and until such LTIP Units have been converted into Common Units. Notwithstanding the foregoing, and except as otherwise permitted by the Vesting Agreement or any award document, plan or other agreement pursuant to which an LTIP Unit was issued, without the consent of the General Partner, the Exchange Rights shall not be exercisable with respect to such Partnership Units.
any Common Unit issued upon conversion of an LTIP Unit until two years after the date on which the LTIP Unit was issued, provided however, that the foregoing restriction shall not apply (ei) Any Assignee if the Exchange Right is exercised by an LTIP Unit holder in connection with a transaction that falls within the definition of a Limited “Change in Control” under the agreement or agreements pursuant to which the LTIP Units were issued to such holder or (ii) in connection with a mandatory conversion in connection with a Capital Transaction as described in Section 12.1 of Exhibit D and Exhibit J.
9.4.13 The General Partner may exercise the assign its rights of such Limited Partner pursuant and obligations under this Section 9.4 to this Article 2, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such AssigneeCCI.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partner.
Appears in 3 contracts
Samples: Limited Partnership Agreement (Cottonwood Communities, Inc.), Limited Partnership Agreement (Cottonwood Communities, Inc.), Merger Agreement (Cottonwood Communities, Inc.)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d) and 2.5 8.05(e) hereof, and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership; provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, ) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the Company elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.05(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned also offered to sell the Partnership Units described in the Exchange Notice to the Company, and the Company may, in its sole and absolute discretion, elect to purchase directly and acquire such rights Partnership Units by paying to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beCompany (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the Company shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the Company shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating Company of such Exchange Notice. Unless the Company (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), the Company shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of an Exchange Right. In the event the Company shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner and the Company shall treat the transaction between the Company and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the Company. Each Exchanging Partner agrees to execute such documents as the Company may reasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the Company pursuant to Section 8.05(b) (regardless of whether or not the Company would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the Company being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the Company to own, directly or constructively, 10% or more of the ownership interests in a tenant of the Company’s, the Partnership’s, or a Subsidiary Partnership’s real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act, provided, that if such Partner delivers an opinion of counsel that is reasonably satisfactory to the Company providing that the acquisition of REIT Shares by such Partner will not be “integrated” with any other distribution of REIT Shares for purposes of complying with the Securities Act, then the General Partner may not prevent such Partner from exercising the Exchange Right by virtue of this clause (v). The General Partner, in its sole and absolute discretion, may, with the consent of the Company, waive any of the restrictions on exchange set forth in this Section 8.05(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the case may beGeneral Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, directly the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Assignee and not counsel, restrictions are necessary in order to such Limited Partneravoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
Appears in 3 contracts
Samples: Limited Partnership Agreement (Behringer Harvard Reit I Inc), Limited Partnership Agreement (Behringer Harvard Reit I Inc), Limited Partnership Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 8.4(d), 8.4(e) and 2.5 hereof8.4(f) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.4(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
(f) Notwithstanding anything else in this Agreement to the contrary, Strategic Storage Advisor IV, LLC is prohibited from exchanging or otherwise transferring the Partnership Units purchased by it for $200,000 cash, so long as it continues acting as the Advisor pursuant to the Advisory Agreement.
Appears in 3 contracts
Samples: Limited Partnership Agreement (Strategic Storage Trust IV, Inc.), Limited Partnership Agreement (Strategic Storage Trust IV, Inc.), Limited Partnership Agreement (Strategic Storage Trust IV, Inc.)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 8.5(d) and 2.5 hereof8.5(e), and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership; provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.5(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.5(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the Company, as Partnership with respect to the case may be, directly to such Assignee and not to such Limited Exchanging Partner.’s exercise of an Exchange
Appears in 3 contracts
Samples: Limited Partnership Agreement (Cole Credit Property Trust Iv, Inc.), Limited Partnership Agreement (Cole Corporate Income Trust, Inc.), Limited Partnership Agreement (United Development Funding IV)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 8.5(d) and 2.5 hereof8.5(e), and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership; provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.5(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.5(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the CompanyPartnership with respect to the Exchanging Partner’s exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the case General Partner may bereasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or a Subsidiary Partnership’s real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Assignee Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.5(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
Appears in 3 contracts
Samples: Limited Partnership Agreement (Cole Credit Property Trust III, Inc.), Limited Partnership Agreement (Cole Credit Property Trust III, Inc.), Limited Partnership Agreement (Cole Retail Income Trust, Inc.)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 8.5(d) and 2.5 hereof8.5(e) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts Partner, other than the General Partner, shall have the right (the “"Exchange Right”), exercisable (i") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “"Exchanging Partner”"); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.5(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.5(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner's exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Stock in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Stock being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being "closely held" within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.5(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "Restriction Notice") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under section 7704 of the Code.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Cornerstone Core Properties REIT, Inc.), Limited Partnership Agreement (Cornerstone Realty Fund Inc)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 and 2.5 hereof8.4(d), and subject 8.4(e) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them or any limitations under other agreement to which a Limited Partner is bound or the requirements of applicable lawlaws, the Operating Partnership hereby grants to rules and regulations, each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the Exchanging Partner is also an officer, director, employee or Affiliate of the General Partner, any election of the General Partner to purchase the applicable Partnership Units and/or pay the Cash Amount or REIT Shares Amount may only be made on behalf of the General Partner by a majority of the disinterested Independent Directors. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.4(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Aggregate Stock Ownership Limit or Common Stock Ownership Limit (each as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation or as approved by a majority of the disinterested Independent Directors, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary or reasonable in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
Appears in 2 contracts
Samples: Limited Partnership Agreement (West Coast Realty Trust, Inc.), Limited Partnership Agreement (West Coast Realty Trust, Inc.)
Exchange Right. (a) Subject From and after the date that is six months following the date of the Merger Effective Time, a holder of Exchangeable Units shall, at any time and from time to Sections 2.2time, 2.3, 2.4 and 2.5 hereofhave the right to require the Partnership to repurchase any or all of the Exchangeable Units held by such holder in exchange for, and subject in connection therewith the right to any limitations under applicable lawrequire TopCo to issue, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right applicable Exchanged Shares (the “Exchange Right”); provided, exercisable however, that a holder of Exchangeable Units may exercise its Exchange Right at any time to effect a transfer to be effective immediately prior to (iand if so elected by such holder, subject to) on or after the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, a TopCo Control Transaction so that such Exchanged Shares to exchange on a Specified Exchange Date all or a portion of the Partnership Units held be received by such Limited Partner at an exchange price equal holder in such repurchase will have the full right and power to participate in such Topco Control Transaction (and such right and power shall be expressly recognized and provided for in the form of the Cash Amountany agreement relating to any such Topco Control Transaction).
(b) To exercise the Exchange Right, the holder shall present and surrender at the office of the Partnership (or at any office of the Registrar and Transfer Agent as may be specified by the Partnership by notice to the holders of Exchangeable Units) a duly executed Exchange Notice together with such additional customary documents and instruments as the Registrar and Transfer Agent or the Partnership may reasonably require; provided that a definitive list of any such documents and instruments and copies thereof shall be posted publicly on the Company’s website. The Exchange Right Notice shall be exercised pursuant to a Notice specify the number and class of Exchange delivered to Exchangeable Units in respect of which the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who holder is exercising the Exchange Right (the “Exchanging PartnerSubject Units”); provided) and, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership Units unless such Limited Partner then holds less than one thousand (1,000) Partnership case of Class C Exchangeable Units, in which event the whether such Units are to be exchanged for TopCo Class C Fully Voting Shares or TopCo Class C Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited PartnerVoting Shares.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee of a Limited Partner may exercise the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partner.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Telesat Partnership LP), Limited Partnership Agreement (Telesat Corp)
Exchange Right. (a) Subject to Sections 2.2Section 8.5(b) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, General Partner to exchange purchase directly and acquire on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) REIT Shares Amount to be paid by the General Partner. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, General Partner (with a copy delivered to the Company, Partnership) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A no Limited Partner may exercise deliver more than four Notices of Exchange during each calendar year. Upon the Specified Exchange Right from time to time with respect to part or all of Date the General Partner shall acquire the Partnership Units that it ownsoffered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units, and each of the Exchanging Partner, the Partnership, and the General Partner, as selected by the Limited case may be, shall treat the transaction between the General Partner, provided thatas the case may be, except and the Exchanging Partner for federal income tax purposes as provided in a sale of the AgreementExchanging Partner's Partnership Units to the General Partner, a as the case may be. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date Date. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with respect to such Partnership Unitsthe issuance of REIT Shares upon exercise of the Exchange Right.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), but subject to Section 8.5(c), unless a Limited Partner may exercise executes and delivers to the rights of such Limited General Partner pursuant to this Article 2, and an ownership limit waiver certificate in the form set forth in Exhibit C hereto (the “Ownership Limit Waiver”) such Limited Partner shall not be deemed entitled to have assigned such rights exercise the Exchange Right if the delivery of REIT Shares to such Assignee and shall be bound Partner on the Specified Exchange Date by the exercise General Partner pursuant to Section 8.5(a) would result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of such rights by such Assigneethe Aggregate Stock Ownership Limit or the Common Stock Ownership Limit (as each is defined in the Charter and calculated in accordance therewith), except as provided in the Charter.
(fc) In connection Notwithstanding the provisions of Section 8.5(b), if the Series B Preferred Unit Recipient is unable to execute and deliver the Ownership Limit Waiver, or comply with the provisions of a previously issued Ownership Limit Waiver, such Partner shall have to right, by providing written notice to the General Partner, to cause the General Partner to hold any exercise real property or other investment through a TRS if such action would allow the Series B Preferred Unit Recipient to comply with the requirements of the Ownership Limit Waiver; provided, however (i) the Series B Preferred Unit Recipient shall be solely responsible for any incremental tax burden and any other expenses associated with the formation and operations of such rights by an Assignee on behalf TRS and any such incremental tax burden and other expenses will be applied to reduce the amount of distributions otherwise payable to the Series B Preferred Unit Recipient in accordance with Section 9.2(d)(iii) hereof and (ii) such action would not cause the General Partner to fail to qualify as a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, REIT. The taxes and expenses described in (i) of this Section 8.5(c) shall be satisfied as reasonably agreed to by the Operating parties at such time.
(d) Notwithstanding anything to the contrary herein, no redemption of Series B Convertible Preferred Units or Common Units by the Partnership shall be effective with respect to a holder thereof (i) unless the Partnership delivers notice of such redemption to the holder thereof no less than 5 business days prior to the proposed date of such redemption and (ii) if the holder thereof delivers to the General Partner an irrevocable Notice of Exchange prior to the fifth business day following receipt of the notice thereof from the Partnership (or the Company, such later date as the case may be, directly to such Assignee and not to such Limited Partnerotherwise be permitted in this Section 8.5).
Appears in 2 contracts
Samples: Limited Partnership Agreement (Sentio Healthcare Properties Inc), Securities Purchase Agreement (Sentio Healthcare Properties Inc)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d) and 2.5 hereof8.05(e), and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i"EXCHANGE RIGHT") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount or the REIT Shares Amount to be paid by the Partnership; provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”"EXCHANGING PARTNER"); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.05(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), the General Partner shall have no obligation to the Exchanging Partner or the CompanyPartnership with respect to the Exchanging Partner's exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the case General Partner may bereasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.05(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being "closely held" within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner's, the Partnership's, or a Subsidiary Partnership's real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Assignee Partner to be "integrated" with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.05(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "RESTRICTION NOTICE") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under Section 7704 of the Code.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Cole Credit Property Trust II Inc), Limited Partnership Agreement (Cole Credit Property Trust II Inc)
Exchange Right. (a) Subject to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right (the “Exchange Right”8.05(b), exercisable (i8.05(c), 8.05(d) and 8.05(e), on or after the date that which is one (1) year after the closing acquisition of such units, each Limited Partner, other than IRET, shall have the Offering or right (iithe "Exchange Right") upon to require the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “"Exchanging Partner”"); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if IRET and/or the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.05(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned offered to sell the Partnership Units described in the Notice of Exchange to the General Partner and IRET, and either of the General Partner or IRET (or both) may, in its sole and absolute discretion, elect to purchase directly and acquire such rights Partnership Units by paying to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, Exchanging Partner either the Cash Amount or the REIT Stock IRET Shares Amount, as elected by the General Partner or IRET (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner or IRET shall acquire the Partnership Units offered for exchange by the exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner and/or IRET shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to a Notice of Exchange, they shall so notify the Exchanging Partner within five Business Days after the receipt b the General Partner of such Notice of Exchange. Unless the General Partner and/or IRET (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), neither the General Partner nor IRET shall have any obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner's exercise of the Exchange Right. In the event the General Partner or IRET shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner or IRET, as the case may be, shall be satisfied by treat the Operating Partnership transaction between the General Partner or the CompanyIRET, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner or IRET, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of IRET Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of IRET Shares to such Assignee Partner on the Specified Exchange Date by the General Partner or IRET pursuant to Section 8.05(b) (regardless of whether or not the General Partner or IRET would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, IRET Shares in excess of the ownership Limitation (as defined in IRET's Declaration of Trust) and calculated in accordance therewith, except as provided in IRET's Declaration of Trust, (ii) result in IRET Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in IRET's Declaration of Trust, (iii) result in IRET being "closely held" within the meaning of Section 856(h) of the Code, (iv) cause IRET to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner's, the Partnership's, or a Subsidiary Partnership's, real property, within the meaning of Section 856(d)(2)(D) of the Code, or (v) cause the acquisition of IRET Shares by such Partner to be "integrated" with any other distribution of IRET Shares for purposes of complying with the registration provisions of the Securities Act of 1933, as amended (the "Securities Act"). The General Partner or IRET, in their sole discretion, may waive the restriction on exchange set forth in this Section 8.05(c); provided, however, that in the event such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that IRET or the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for IRET to cause additional IRET Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, IRET and the General Partner agree to use their best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "Restriction Notice") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under section 7704 of the Code.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Investors Real Estate Trust), Partnership Agreement (Investors Real Estate Trust)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d) and 2.5 8.05(e) hereof, and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership; provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.05(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), the General Partner shall have no obligation to the Exchanging Partner or the CompanyPartnership with respect to the Exchanging Partner’s exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the case General Partner may bereasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.05(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or a Subsidiary Partnership’s real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Assignee Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act, provided, that if such Partner delivers an opinion of counsel that is reasonably satisfactory to the General Partner providing that the acquisition of REIT Shares by such Partner will not be “integrated” with any other distribution of REIT Shares for purposes of complying with the Securities Act, then the General Partner may not prevent such Partner from exercising the Exchange Right by virtue of this clause (v). The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.05(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Behringer Harvard Opportunity REIT I, Inc.), Limited Partnership Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 8.4(d), 8.4(e) and 2.5 hereof8.4(f) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.4(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
(f) Notwithstanding anything else in this Agreement to the contrary, Xxxxxxx Capital Essential Asset Advisor II, LLC is prohibited from exchanging or otherwise transferring the Partnership Units purchased by it on ____________, 2014 for $200,000 cash, so long as it continues acting as the Advisor pursuant to the Advisory Agreement.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Griffin Capital Essential Asset REIT II, Inc.), Limited Partnership Agreement (Griffin Capital Essential Asset REIT II, Inc.)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 8.4(d), 8.4(e) and 2.5 hereof8.4(f) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.4(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
(f) Notwithstanding anything else in this Agreement to the contrary, The GC Net Lease REIT Advisor, LLC is prohibited from exchanging or otherwise transferring the Partnership Units purchased by it on December 26, 2008 for $200,000 cash, so long as it acting as the Advisor pursuant to the Advisory Agreement.
(g) Each Limited Partner covenants and agrees with the General Partner that all Partnership Units delivered for exchange shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be under any obligation to acquire Partnership Units which are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the transfer of its Partnership Units to the Partnership or the General Partner, such Limited PartnerPartner shall assume and pay such transfer tax.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Gc Net Lease Reit, Inc.), Limited Partnership Agreement (Gc Net Lease Reit, Inc.)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 8.5(d), 8.5(e) and 2.5 hereof8.5(f) and the provisions of any agreements between the Partnership and one or more holders of Common Units with respect to Common Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts holder of Common Units shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Common Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Common Units subject to the Notice of Exchange is deliveredpursuant to Section 8.5(b); and provided, to satisfy the further, that no holder of Common Units may deliver more than two (2) Notices of Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) during each calendar year. A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership 1,000 Common Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership 1,000 Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Common Units so exchanged exchanged, to receive any distributions distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Common Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Common Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Common Units. If the General Partner shall elect to exercise its right to purchase Common Units under this Section 8.5(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five (5) Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Common Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, nine and nine-tenths percent (9.9%) or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.5(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional one hundred eighty (180) days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Common Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
(f) Notwithstanding anything else in this Agreement to the contrary, Xxxxxxx Capital Essential Asset Advisor II, LLC is prohibited from exchanging or otherwise transferring the Partnership Units purchased by it on February 11, 2014, for $200,000 cash, so long as it continues acting as the Advisor pursuant to the Advisory Agreement.
(g) Each Limited Partner covenants and agrees with the General Partner that all Common Units delivered for exchange shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be under any obligation to acquire Common Units which are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the transfer of its Common Units to the Partnership or the General Partner, such Limited PartnerPartner shall assume and pay such transfer tax.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Griffin Capital Essential Asset REIT II, Inc.), Limited Partnership Agreement (Griffin Capital Essential Asset REIT II, Inc.)
Exchange Right. (a) Subject to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right (the “Exchange Right”), exercisable (i) on or after the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount. Notwithstanding anything to the contrary herein, the Exchange Right shall only be applicable to such Partnership Units that are Common Units and not Series A Preferred Units prior to conversion of such Series A Preferred Units to Common Units pursuant to the Partnership Agreement.
(b) The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it ownsowns (including Common Units received upon conversion of Series A Preferred Units), as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership Units unless such Limited Partner then holds less than one thousand (1,000) Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee of a Limited Partner may exercise the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partner.
Appears in 2 contracts
Samples: Exchange Rights Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Exchange Rights Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Exchange Right. (a) Subject From and after the date that is six months following the date of the Merger Effective Time, a holder of Exchangeable Units shall, at any time and from time to Sections 2.2time, 2.3, 2.4 and 2.5 hereofhave the right to require the Partnership to repurchase any or all of the Exchangeable Units held by such holder in exchange for, and subject in connection therewith the right to any limitations under applicable lawrequire TopCo to issue, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right applicable Exchanged Shares (the “Exchange Right”); provided, exercisable however, that a holder of Exchangeable Units may exercise its Exchange Right at any time to effect a transfer to be effective immediately prior to (iand if so elected by such holder, subject to) on or after the date that is one (1) year after the closing of a TopCo Control Transaction so that such Exchanged Shares to be received by such holder in such repurchase will have the Offering or full right and power to participate in such Topco Control Transaction (ii) upon and such right and power shall be expressly recognized and provided for in any agreement relating to any such Topco Control Transaction). To exercise the liquidation of Exchange Right, the Operating Partnership or holder shall present and surrender at the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a Specified Exchange Date all or a portion office of the Partnership Units held by such Limited Partner (or at an exchange price equal to and in the form any office of the Cash Amount.
(bRegistrar and Transfer Agent as may be specified by the Partnership by notice to the holders of Exchangeable Units) a duly executed Exchange Notice together with such additional customary documents and instruments as the Registrar and Transfer Agent or the Partnership may reasonably require; provided that a definitive list of any such documents and instruments and copies thereof shall be posted publicly on the Company’s website. The Exchange Right Notice shall be exercised pursuant to a Notice specify the number and class of Exchange delivered to Exchangeable Units in respect of which the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who holder is exercising the Exchange Right (the “Exchanging PartnerSubject Units”); provided) and, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership Units unless such Limited Partner then holds less than one thousand (1,000) Partnership case of Class C Exchangeable Units, in which event the whether such Units are to be exchanged for TopCo Class C Fully Voting Shares or TopCo Class C Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited PartnerVoting Shares.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee of a Limited Partner may exercise the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partner.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Telesat Canada), Limited Partnership Agreement (Loral Space & Communications Inc.)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d) and 2.5 8.05(e) hereof, and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “"Exchange Right”), exercisable (i") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership; provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “"Exchanging Partner”"); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.05(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five (5) business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), the General Partner shall have no obligation to the Exchanging Partner or the CompanyPartnership with respect to the Exchanging Partner's exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the case General Partner may bereasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.05(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other Person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than one hundred (100) Persons (determined without reference to any rules of attribution), (iii) result in the General Partner being "closely held" within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner's, the Partnership's, or a Subsidiary Partnership's real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Assignee Partner to be "integrated" with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.05(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to one-hundred eighty (180) days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its commercially reasonable efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "Restriction Notice") to such each of the Limited PartnerPartners.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Plymouth Industrial REIT Inc.), Limited Partnership Agreement (Plymouth Opportunity REIT Inc.)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 8.4(d), 8.4(e) and 2.5 hereof8.4(f) and the provisions of any agreements between the Partnership and one or more holders of Common Units with respect to Common Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts holder of Common Units shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Common Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Common Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the further, that no holder of Common Units may deliver more than two Notices of Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) during each calendar year. A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less fewer than one thousand (1,000) Partnership 1,000 Common Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership 1,000 Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Common Units so exchanged exchanged, to receive any distributions distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Common Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Common Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Common Units. If the General Partner shall elect to exercise its right to purchase Common Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five business days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Common Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.4(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Common Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
(f) Notwithstanding anything else in this Agreement to the contrary, SmartStop Storage Advisors, LLC and SmartStop OP, L.P. are prohibited from exchanging or otherwise transferring $202,000 of the Partnership Units purchased by them, so long as the Advisor continues acting as the Advisor pursuant to the Advisory Agreement.
(g) Each Limited Partner covenants and agrees with the General Partner that all Common Units delivered for exchange shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be under any obligation to acquire Common Units which are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the transfer of its Common Units to the Partnership or the General Partner, such Limited PartnerPartner shall assume and pay such transfer tax.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Strategic Storage Trust VI, Inc.), Limited Partnership Agreement (Strategic Storage Trust VI, Inc.)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 8.4(d), 8.4(e) and 2.5 hereof8.4(f) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.4(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
(f) Notwithstanding anything else in this Agreement to the contrary, Strategic Storage Advisor, LLC is prohibited from exchanging or otherwise transferring the Partnership Units purchased by it on August 24, 2007 for $200,000 cash, so long as it acting as the Advisor pursuant to the Advisory Agreement.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Strategic Storage Trust, Inc.), Limited Partnership Agreement (Strategic Storage Trust, Inc.)
Exchange Right. (a) A. Subject to Sections 2.22.1.B, 2.32.1.C, 2.4 2.1.D and 2.5 2.1.E hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right (the “Exchange Right”), exercisable (i"EXCHANGE RIGHT") on or after the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a Specified Exchange Date all or a portion of the Partnership OP Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) . The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”"EXCHANGING PARTNER"); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) 2.1.B. A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership OP Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership OP Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership OP Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) . Any Assignee of a Limited Partner may exercise the rights of such Limited Partner pursuant to this Article 2Section 2.1, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) . In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partner. Notwithstanding anything to the contrary in this Section 2.1.A, the Company and the Limited Partner may agree, at any time by separate agreement, that the Company will, subject to Section 2.1.C, satisfy an Exchange Right with REIT Stock.
B. Notwithstanding the provisions of Section 2.1.A, the Company may, on behalf of the Operating Partnership, in its sole and absolute discretion, elect to satisfy an Exchanging Partner's Exchange Right by exchanging REIT Stock and rights equal to the REIT Stock Amount on the Specified Exchange Date for the OP Units offered for exchange by the Exchanging Partner. In the event the Company shall elect to satisfy, on behalf of the Operating Partnership, an Exchanging Partner's Exchange Right by exchanging REIT Stock for the OP Units offered for exchange, (i) the Company hereby agrees to notify the Exchanging Partner within five (5) Business Days after the receipt by the Company of such Notice of Exchange, (ii) each Exchanging Partner hereby agrees to execute such documents and instruments as the Company may reasonably require in connection with the issuance of REIT Stock upon exercise of the Exchange Right and (iii) the Company hereby agrees to deliver stock certificates representing fully paid and nonassessable shares of REIT Stock.
C. Notwithstanding anything herein to the contrary, the Company shall not be entitled to satisfy an Exchanging Partner's Exchange Right pursuant to Section 2.1.B if the delivery of REIT Stock to such Limited Partner by the Company pursuant to Section 2.1.B (regardless of the Operating Partnership's obligations to the Limited Partner under Section 2.1.A) (i) would be prohibited under the Articles of Incorporation of the Company, (ii) would otherwise jeopardize the REIT status of the Company, or (iii) would cause the acquisition of the REIT Stock by the Limited Partner to be "integrated" with any other distribution of REIT Stock by the Company for purposes of complying with the registration provisions of the Securities Act of 1933, as amended.
Appears in 2 contracts
Samples: Merger Agreement (American General Hospitality Corp), Merger Agreement (Capstar Hotel Co)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 8.5(d) and 2.5 hereof8.5(e) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts Partner, other than the General Partner, shall have the right (the “"Exchange Right”), exercisable (i") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Partnership Units shall have been outstanding for at least one year; and provided, further, no redemption may occur except on a quarterly basis. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “"Exchanging Partner”"); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.5(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.5(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner's exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Stock in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Stock being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being "closely held" within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.5(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "Restriction Notice") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under section 7704 of the Code.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Berkeley Income Trust, Inc.), Limited Partnership Agreement (Berkeley Income Trust, Inc.)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 8.5(d), and 2.5 hereof8.5(e), and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner (such Partnership Units, the “Tendered Units”) at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership; provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.5(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Tendered Units to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Tendered Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Tendered Units and shall be treated for all purposes of this Agreement as the owner of such Tendered Units. If the General Partner shall elect to exercise its right to purchase Tendered Units under this Section 8.5(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Tendered Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Tendered Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Tendered Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or a Subsidiary Partnership’s real property within the meaning of Section 856(d)(2)(B) of the Code (except to the extent the General Partner determines that such ownership would be permitted pursuant to Section 856(d)(8), or (v) cause the acquisition of REIT Shares by such Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.5(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of Tendered Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are reasonably necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
(f) Each Limited Partner covenants and agrees with the General Partner that all Tendered Units shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be satisfied by under any obligation to acquire Tendered Units that are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the Operating transfer of its Tendered Units to the Partnership or the CompanyGeneral Partner, as the case may be, directly to such Assignee and not to such Limited PartnerPartner shall assume and pay such transfer tax.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Cole Office & Industrial REIT (CCIT III), Inc.), Limited Partnership Agreement (Cole Office & Industrial REIT (CCIT III), Inc.)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 and 2.5 hereof8.05(d), and subject 8.05(e) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to any limitations under applicable lawPartnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts Partner, other than the General Partner, shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.05(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), the General Partner shall not have any obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.05(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limitation (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant, within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.05(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Wells Real Estate Investment Trust Ii Inc), Limited Partnership Agreement (Wells Real Estate Investment Trust Ii Inc)
Exchange Right. (a) Subject to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right (the “Exchange Right”), exercisable (i) on or after the date that is one (1) year after the closing issuance of the Offering Limited Partner’s Limited Partnership Interest or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf in its capacity as General Partner of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A Limited Partner may exercise the Exchange Right in accordance with the terms of this Agreement from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership Units unless such Limited Partner then holds less than one thousand (1,000) Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee of a Limited Partner may exercise the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partner.
Appears in 2 contracts
Samples: Agreement of Limited Partnership (Independence Realty Trust, Inc), Limited Partnership Agreement (Independence Realty Trust, Inc)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 8.4(d), 8.4(e) and 2.5 hereof8.4(f) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Common Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Common Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership 1,000 Common Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership 1,000 Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Common Units so exchanged exchanged, to receive any distributions distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Common Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Common Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Common Units, which upon such acquisition shall become Class B Common Units. If the General Partner shall elect to exercise its right to purchase Common Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Common Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.4(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Common Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
(f) Notwithstanding anything else in this Agreement to the contrary, Xxxxxxx Capital Essential Asset Advisor, LLC is prohibited from exchanging or otherwise transferring the Partnership Units purchased by it on December 26, 2008 for $200,000 cash, so long as it acting as the Advisor pursuant to the Advisory Agreement.
(g) Each Limited Partner covenants and agrees with the General Partner that all Common Units delivered for exchange shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be under any obligation to acquire Common Units which are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the transfer of its Common Units to the Partnership or the General Partner, such Limited PartnerPartner shall assume and pay such transfer tax.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Griffin Capital Essential Asset REIT, Inc.), Limited Partnership Agreement (Griffin Capital Essential Asset REIT, Inc.)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d) and 2.5 8.05(e) hereof, and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership; provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.05(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five (5) business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), the General Partner shall have no obligation to the Exchanging Partner or the CompanyPartnership with respect to the Exchanging Partner’s exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the case General Partner may bereasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.05(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other Person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than one hundred (100) Persons (determined without reference to any rules of attribution), (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or a Subsidiary Partnership’s real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Assignee Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.05(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to one-hundred eighty (180) days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its commercially reasonable efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to such each of the Limited PartnerPartners.
Appears in 2 contracts
Samples: Agreement of Limited Partnership (Plymouth Industrial REIT Inc.), Limited Partnership Agreement (Plymouth Opportunity REIT Inc.)
Exchange Right. (a) Subject to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each the New Limited Partner Partner, and each New Limited Partner hereby accepts the right (the “Exchange Right”), exercisable (i) on or after the date that is one (1) year after the closing date of the Offering this Agreement or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a Specified Exchange Date all or a portion of the Partnership Units held by such New Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, by the New Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A The New Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the New Limited Partner, provided that, except as provided in the Agreement, a the New Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership Units unless such the New Limited Partner then holds less than one thousand (1,000) Partnership Units, in which event the New Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such the New Limited Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee of a the New Limited Partner may exercise the rights of such the New Limited Partner pursuant to this Article 2, and such the New Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a the New Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such New Limited Partner.
Appears in 1 contract
Samples: Limited Liability Company Agreement (United Realty Trust Inc)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d) and 2.5 8.05(e) hereof, and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i"EXCHANGE RIGHT") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership; provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging "EXCHANGING Partner”"); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.05(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), the General Partner shall have no obligation to the Exchanging Partner or the CompanyPartnership with respect to the Exchanging Partner's exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the case General Partner may bereasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.05(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being "closely held" within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner's, the Partnership's, or a Subsidiary Partnership's real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Assignee Partner to be "integrated" with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.05(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "RESTRICTION NOTICE") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under Section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Behringer Harvard Reit I Inc)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d), 8.05(e) and 2.5 hereof8.05(f) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Common Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts Partner, other than the Company, shall have the right (the “"Exchange Right”), exercisable (i") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Common Units 77 shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “"Exchanging Partner”"); provided, however, that the Company, on behalf of -------- ------- Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a Company and/or the General Partner elects to purchase the Common Units subject to the Notice of Exchange is deliveredpursuant to Section 8.05(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership 1,000 Common Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership 1,000 Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Common Units so exchanged exchanged, to receive any distributions distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned offered to sell the Common Units described in the Notice of Exchange to the General Partner and the Company, and either of the General Partner or the Company (or both) may, in its sole and absolute discretion, elect to purchase directly and acquire such rights Common Units by paying to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner or the Company (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner or the Company shall acquire the Common Units offered for exchange by the exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Common Units. If the General Partner and/or the Company shall elect to exercise its right to purchase Common Units under this Section 8.05(b) with respect to a Notice of Exchange, they shall so notify the Exchanging Partner within five Business Days after the receipt by the Operating General Partner of such Notice of Exchange. Unless the General Partner and/or the Company (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 8.05(b), neither the General Partner nor the Company shall have any obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner's exercise of the Exchange Right. In the event the General Partner or the Company shall exercise its right to purchase Common Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner or the Company, as the case may be, directly shall treat the transaction between the General Partner or the Company, as the case may be, and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Common Units to the General Partner or the Company, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner or the Company pursuant to Section 8.05(b) (regardless of whether or not the General Partner or the Company would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limitation (as defined in the Certificate of Incorporation) and calculated in accordance therewith, except as provided in the Certificate of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Certificate of Incorporation, (iii) result in the Company being "closely held" within the meaning of Section 856(h) of the Code, (iv) cause the Company to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner's, the Partnership's, or a Subsidiary Partnership's, real property, within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Partner to be "integrated" with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act of 1933, as amended (the "Securities Act"). The General Partner or the Company, in their sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.05(c); provided, however, that in the event such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that the Company or the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the Company to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the Company and the General Partner agree to use their best efforts to cause the closing of the acquisition of exchanged Common Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "Restriction Notice") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Prentiss Properties Trust/Md)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 8.4(d), 8.4(e) and 2.5 hereof8.4(f) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.4(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
(f) Notwithstanding anything else in this Agreement to the contrary, SS Growth Advisor, LLC is prohibited from exchanging or otherwise transferring the $201,000 in Partnership Units it held as of December 3, 2013 so long as it continues acting as the Advisor pursuant to the Advisory Agreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Strategic Storage Growth Trust, Inc.)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 8.4(d), 8.4(e) and 2.5 hereof8.4(f) and the provisions of any agreements between the Partnership and one or more holders of Common Units with respect to Common Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts holder of Common Units shall have the right (the “"Exchange Right”), exercisable (i") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Common Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “"Exchanging Partner”"); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Common Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the further, that no holder of Common Units may deliver more than two (2) Notices of Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) during each calendar year. A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership 1,000 Common Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership 1,000 Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Common Units so exchanged exchanged, to receive any distributions distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Common Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Common Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Common Units. If the General Partner shall elect to exercise its right to purchase Common Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five (5) Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner's exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Common Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.4(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being "closely held" within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, nine and nine-tenths percent (9.9%) or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional one hundred eighty (180) days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Common Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "Restriction Notice") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under section 7704 of the Code.
(f) Notwithstanding anything else in this Agreement to the contrary, Xxxxxxx Capital Essential Asset Advisor II, LLC is prohibited from exchanging or otherwise transferring the Partnership Units purchased by it on February 11, 2014, for $200,000 cash, so long as it continues acting as the Advisor pursuant to the Advisory Agreement.
(g) Each Limited Partner covenants and agrees with the General Partner that all Common Units delivered for exchange shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be under any obligation to acquire Common Units which are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the transfer of its Common Units to the Partnership or the General Partner, such Limited PartnerPartner shall assume and pay such transfer tax.
Appears in 1 contract
Samples: Limited Partnership Agreement (Griffin Capital Essential Asset REIT II, Inc.)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 and 2.5 hereof8.05(d), and subject to any limitations under applicable law8.05(e), on or after the Operating Partnership hereby grants to date which is one year after the acquisition of such units, each Limited Partner and each Limited Partner hereby accepts Partner, shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) , or at the option of the Partnership in the form of INREIT Shares based on the Conversion Factor, to be paid by the Partnership. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.05(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned offered to sell the Partnership Units described in the Notice of Exchange to the General Partner and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such rights Partnership Units by paying to such Assignee the Exchanging Partner the Cash Amount on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be bound treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), the General Partner shall not have any obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such rights by such Assignee.
(f) In connection with any Exchanging Partner’s exercise of such rights by an Assignee on behalf Exchange Right, and each of a Limited the Exchanging Partner, the Cash Amount or Partnership, and the REIT Stock AmountGeneral Partner, as the case may be, shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of INREIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.05(a) and 8.05(b), a Limited Partner shall not be satisfied entitled to exercise the Exchange Right if the delivery of INREIT Shares to such Partner on the Specified Exchange Date by the Operating Partnership General Partner pursuant to Section 8.05(b) (regardless of whether or not the CompanyGeneral Partner would in fact exercise its rights under Section 8.05(b) would: (i) result in such Partner or any other person owning, directly or indirectly, INREIT Shares in excess of the ownership Limitation (as defined in INREIT’s Declaration of Trust) and calculated in accordance therewith, except as provided in INREIT’s Declaration of Trust, (ii) result in INREIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in INREIT’s Declaration of Trust, (iii) result in INREIT being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause INREIT to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or a Subsidiary Partnership’s, real property, within the meaning of Section 856(d)(2)(D) of the Code, or (v) cause the acquisition of INREIT Shares by such Partner to be “integrated” with any other distributions of INREIT Shares for purposes of complying with the registration provisions of the Securities Act of 1933, as amended (the case “Securities Act”). The General Partner, in its sole discretion, may bewaive the restriction on exchange set forth in this Section 8.05(c); provided, directly however, that in the event such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for INREIT to cause additional INREIT Shares to be issued to provide financing to be used to make such Assignee payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
Appears in 1 contract
Samples: Agreement of Limited Liability Limited Partnership (INREIT Real Estate Investment Trust)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 8.4(d), 8.4(e) and 2.5 hereof8.4(f) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.4(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (SmartStop Self Storage, Inc.)
Exchange Right. (a)
(a) Subject to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right (the “Exchange Right”), exercisable (i) on or after the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership Units unless such Limited Partner then holds less than one thousand (1,000) Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee of a Limited Partner may exercise the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partner.
Appears in 1 contract
Samples: Limited Partnership Agreement (Empire American Realty Trust Inc)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d), 8.05(e) and 2.5 hereof8.05(f) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts Partner, other than the Company, shall have the right (the “"Exchange Right”), exercisable (i") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, PROVIDED that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “"Exchanging Partner”"); providedPROVIDED, howeverHOWEVER, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a Company and/or the General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.05(b); and PROVIDED, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A FURTHER, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned offered to sell the Partnership Units described in the Notice of Exchange to the General Partner and the Company, and either of the General Partner or the Company (or both) may, in its sole and absolute discretion, elect to purchase directly and acquire such rights Partnership Units by paying to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner or the Company (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner or the Company shall acquire the Partnership Units offered for exchange by the exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner and/or the Company shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to a Notice of Exchange, they shall so notify the Exchanging Partner within five Business Days after the receipt by the Operating General Partner of such Notice of Exchange. Unless the General Partner and/or the Company (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), neither the General Partner nor the Company shall have any obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner's exercise of the Exchange Right. In the event the General Partner or the Company shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner or the Company, as the case may be, directly shall treat the transaction between the General Partner or the Company, as the case may be, and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner or the Company, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner or the Company pursuant to Section 8.05(b) (regardless of whether or not the General Partner or the Company would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limitation (as defined in the Amended and Restated Articles of Incorporation) and calculated in accordance therewith, except as provided in the Amended and Restated Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Amended and Restated Articles of Incorporation, (iii) result in the Company being "closely held" within the meaning of Section 856(h) of the Code, (iv) cause the Company to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner's, the Partnership's, or a Subsidiary Partnership's, real property, within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Partner to be "integrated" with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act of 1933, as amended (the "Securities Act"). The General Partner or the Company, in their sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.05(c); PROVIDED, HOWEVER, that in the event such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; PROVIDED, HOWEVER, that the Company or the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the Company to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the Company and the General Partner agree to use their best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "Restriction Notice") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Ocwen Asset Investment Corp)
Exchange Right. (a) Subject to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right (the ““ Exchange RightRight ”), exercisable (i) on or after the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who is exercising the Exchange Right (the ““ Exchanging PartnerPartner ”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership Units unless such Limited Partner then holds less than one thousand (1,000) Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee of a Limited Partner may exercise the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partner.
Appears in 1 contract
Samples: Limited Partnership Agreement (Carter Validus Mission Critical REIT, Inc.)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 8.4(d) and 2.5 hereof8.4(e) below and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts Partner, other than the General Partner, shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units U nits held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b) below; and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise deliver more than two Notices of Exchange during each calendar year unless the REIT Shares are then Publicly Traded, in which case there will be no limitation on the number of Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a may be delivered. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds hold s less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership Units.
(eDate. Notwithstanding the provisions of Section 8.4(a) Any Assignee of above, a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership U nits. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall treat the transaction between the General Partner, and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with any issuance of REIT Shares upon exercise of the Exchange Right. Notwithstanding the provisions of Section 8.4(a) and 8.4(b) above, a Limited Partner shall not be satisfied entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the Operating Partnership General Partner pursuant to Section 8.4(b) above (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, shares of the General Partner in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in shares of the General Partner being owned by fewer than 100 Persons (determined without reference to any rules of attribution and under the definition of “Person” in the Articles of Incorporation), except as provided in the Articles of Incorporation, result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 9.8% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or any direct or indirect subsidiary (including, without limitation, partnerships, joint ventures and limited liability companies) of the General Partner’s or the CompanyPartnership’s real property, as within the case may bemeaning of Section 856(d)(2)(B) of the Code, (v) otherwise, directly or indirectly, cause the General Partner to fail to qualify as a REIT or (vi) cause the acquisition of REIT Shares by such Assignee Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c); provided, however, that in the event such restriction is waived, the Exchanging Partner shall be paid the Cash Amount. Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership U nits hereunder to occur as quickly as reasonably possible. Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded Partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners holding Partnership Units, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid having the Partnership be treated as a “publicly traded partnership “ under Section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Americold Realty Trust)
Exchange Right. (a) Subject to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right (the “Exchange Right”"EXCHANGE RIGHT"), exercisable (i) on or after the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating PartnershipConsolidation [add to definitions], to exchange on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”"EXCHANGING PARTNER"); providedPROVIDED, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership Units unless such Limited Partner then holds less than one thousand (1,000) Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee of a Limited Partner may exercise the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partner.
Appears in 1 contract
Samples: Agreement of Limited Partnership (American Spectrum Realty Inc)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 and 2.5 hereof8.5(d), and subject 8.5(e) and the provisions of any agreements between the Partnership and one or more holders of Common Units with respect to Common Units held by them, each holder of Common Units (other than the General Partner or any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts wholly-owned Subsidiary thereof) shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that any Common Units issued after the date of this Agreement shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Common Units subject to the Notice of Exchange is deliveredpursuant to Section 8.5(b); and provided, to satisfy the further, that no holder of Common Units may deliver more than two Notices of Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) during each calendar year. A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right (i) for less than one thousand 1,000 Common Units or, if such Limited Partner holds less than 1,000 Common Units, all of the Common Units held by such Partner or (1,000ii) Partnership Units for fractional Common Units, unless such Limited Partner then holds less than one thousand (1,000) Partnership Units, in which event the Limited Partner must exercise is exercising the Exchange Right for with respect to all of the Partnership remaining Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Common Units so exchanged exchanged, to receive any distributions distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Common Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Common Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion in its capacity as the general partner of the Partnership), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Common Units. If the General Partner shall elect to exercise its right to purchase Common Units under this Section 8.5(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five business days before the Specified Exchange Date. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Common Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Aggregate Share Ownership Limit (as defined in the Declaration of Trust and calculated in accordance therewith), except as provided in the Declaration of Trust, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Declaration of Trust, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion and subject to obtaining a waiver pursuant to section 7.1.7 of the General Partner’s Declaration of Trust, may waive the restriction on exchange set forth in this Section 8.5(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued or otherwise to obtain financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Common Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
(f) Each Limited Partner covenants and agrees with the General Partner that all Common Units delivered for exchange shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be under any obligation to acquire Common Units which are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the transfer of its Common Units to the Partnership or the General Partner, such Limited PartnerPartner shall assume and pay such transfer tax.
(g) Holders of LTIP Units shall not be entitled to the Exchange Right unless and until such LTIP Units have been converted into Common Units in accordance with their terms; provided that the one year requirement set forth in the first sentence of Section 8.5(a) shall not apply with respect to Common Units issued upon conversion of LTIP Units. Notwithstanding the foregoing, and except as otherwise permitted by the award, plan or other agreement pursuant to which an LTIP Unit was issued, an Exchange Right shall not be exercisable with respect to any Common Unit issued upon conversion of an LTIP Unit until on or after the date that is two years after the date on which the LTIP Unit was issued, provided however, that the foregoing restriction shall not apply if an Exchange Right is exercised by an LTIP Unitholder in connection with a transaction that falls within the definition of a “change of control” under the agreement or agreements pursuant to which the LTIP Units were issued.
Appears in 1 contract
Samples: Limited Partnership Agreement (Peakstone Realty Trust)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 8.5(d), 8.5(e) and 2.5 hereof8.5(f) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.5(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.5(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.5(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
(f) Notwithstanding anything else in this Agreement to the contrary, Cornerstone Leveraged Realty Advisors, LLC is prohibited from exchanging the Partnership Units purchased by it on November 9, 2006 for $200,000 cash at any time prior to November 9, 2008 and the General Partner hereby agrees that it will not permit the amendment of this Agreement to permit the exchange of the Partnership Units owned by Cornerstone Leveraged Realty Advisors, LLC prior to November 9, 2008.
Appears in 1 contract
Samples: Limited Partnership Agreement (Cornerstone Growth & Income REIT, Inc.)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 8.4(d), 8.4(e) and 2.5 hereof8.4(f) and the provisions of any agreements between the Partnership and one or more holders of Common Units with respect to Common Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts holder of Common Units shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Common Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Common Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the further, that no holder of Common Units may deliver more than two (2) Notices of Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) during each calendar year. A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership 1,000 Common Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership 1,000 Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Common Units so exchanged exchanged, to receive any distributions distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Common Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Common Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Common Units. If the General Partner shall elect to exercise its right to purchase Common Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five (5) Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Common Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.4(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, nine and nine-tenths percent (9.9%) or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional one hundred eighty (180) days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Common Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
(f) Notwithstanding anything else in this Agreement to the contrary, Strategic Storage Advisor II, LLC is prohibited from exchanging or otherwise transferring the Partnership Units purchased by it on August 2, 2013, for a total of $200,000 cash, so long as it continues acting as the Advisor pursuant to the Advisory Agreement.
(g) Each Limited Partner covenants and agrees with the General Partner that all Common Units delivered for exchange shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be under any obligation to acquire Common Units which are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the transfer of its Common Units to the Partnership or the General Partner, such Limited PartnerPartner shall assume and pay such transfer tax.
Appears in 1 contract
Samples: Limited Partnership Agreement (Strategic Storage Trust II, Inc.)
Exchange Right. (a) Subject to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each the Limited Partner and each the Limited Partner hereby accepts the right (the “Exchange Right”), exercisable (i) on or after the date that is one (1) year after the closing of issuance of the Offering Limited Partner’s Limited Partnership Interest or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf in its capacity as General Partner of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A The Limited Partner may exercise the Exchange Right in accordance with the terms of this Agreement from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership Units unless such Limited Partner then holds less than one thousand (1,000) Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee of a Limited Partner may exercise the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partner.
Appears in 1 contract
Samples: Exchange Rights Agreement (Independence Realty Trust, Inc)
Exchange Right. (a) Subject to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right (the “Exchange Right”8.05(b), exercisable (i8.05(c), 8.05(d) and 8.05(e), on or after the date that which is one (1) year after the closing acquisition of such units, each Limited Partner, other than IRET, shall have the Offering or right (iithe "Exchange Right") upon to require the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership. The Exchange Right shall be exercised pursuant to a Notice of Exchange (a form of which is attached as Exhibit A hereto) delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “"Exchanging Partner”"); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if IRET and/or the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.05(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 100 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 100 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned offered to sell the Partnership Units described in the Notice of Exchange to the General Partner and IRET, and either of the General Partner or IRET (or both) may, in its sole and absolute discretion, elect to purchase directly and acquire such rights Partnership Units by paying to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, Exchanging Partner either the Cash Amount or the REIT Stock IRET Shares Amount, as elected by the General Partner or IRET (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner or IRET shall acquire the Partnership Units offered for exchange by the exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner and/or IRET shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to a Notice of Exchange, they shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner and/or IRET (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), neither the General Partner nor IRET shall have any obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner's exercise of the Exchange Right. In the event the General Partner or IRET shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner or IRET, as the case may be, shall be satisfied by treat the Operating Partnership transaction between the General Partner or the CompanyIRET, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner or IRET, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of IRET Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of IRET Shares to such Assignee Partner on the Specified Exchange Date by the General Partner or IRET pursuant to Section 8.05(b) (regardless of whether or not the General Partner or IRET would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, IRET Shares in excess of the ownership Limitation (as defined in IRET's Declaration of Trust) and calculated in accordance therewith, except as provided in IRET's Declaration of Trust, (ii) result in IRET Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in IRET's Declaration of Trust, (iii) result in IRET being "closely held" within the meaning of Section 856(h) of the Code, (iv) cause IRET to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner's, the Partnership's, or a Subsidiary Partnership's, real property, within the meaning of Section 856(d)(2)(D) of the Code, or (v) cause the acquisition of IRET Shares by such Partner to be "integrated" with any other distribution of IRET Shares for purposes of complying with the registration provisions of the Securities Act of 1933, as amended (the "Securities Act"). The General Partner or IRET, in their sole discretion, may waive the restriction on exchange set forth in this Section 8.05(c); provided, however, that in the event such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that IRET or the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for IRET to cause additional IRET Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, IRET and the General Partner agree to use their best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "Restriction Notice") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Investors Real Estate Trust)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d), 8.05(e) and 2.5 hereof8.05(f) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts Partner, other than the General Partner, shall have the right (the “"Exchange Right”), exercisable (i") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Partnership Units shall have been outstanding -------- for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “"Exchanging Partner”"); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.05(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to a Notice of Exchange, they shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), the General Partner shall have any obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner's exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.05(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limitation (as defined in the Articles of Incorporation) and calculated in accordance therewith, except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being "closely held" within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner's, the Partnership's, or a Subsidiary Partnership's, real property, within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Partner to be "integrated" with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act of 1933, as amended (the "Securities Act"). The General Partner, in their sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.05(c); provided, however, that in the event such restriction is -------- ------- waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, -------- however, that the General Partner may elect to cause the Specified Exchange Date ------- to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "Restriction Notice") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Wells Real Eastate Investment Trust Inc)
Exchange Right. (a) Subject to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right (the “Exchange Right”), exercisable (i) on or after the date that is one (1) year after the closing issuance of the Offering Limited Partner’s Limited Partnership Interest (the “Holding Period”) or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf in its capacity as General Partner of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A Limited Partner may exercise the Exchange Right in accordance with the terms of this Agreement from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership Units unless such Limited Partner then holds less than one thousand (1,000) Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee of a Limited Partner may exercise the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partner.
Appears in 1 contract
Samples: Exchange Rights Agreement (Independence Realty Trust, Inc.)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 and 2.5 hereof8.5(d), and subject 8.5(e) and the provisions of any agreements between the Partnership and one or more holders of Common Units with respect to any limitations under applicable lawCommon Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts holder of Common Units shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that any Common Units issued after the date of this Agreement shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Common Units subject to the Notice of Exchange is deliveredpursuant to Section 8.5(b); and provided, to satisfy the further, that no holder of Common Units may deliver more than two Notices of Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) during each calendar year. A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership 1,000 Common Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership 1,000 Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Common Units so exchanged exchanged, to receive any distributions distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Common Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Common Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Common Units. If the General Partner shall elect to exercise its right to purchase Common Units under this Section 8.5(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five business days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Common Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Aggregate Share Ownership Limit (as defined in the Declaration of Trust and calculated in accordance therewith), except as provided in the Declaration of Trust, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Declaration of Trust, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.5(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Common Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
(f) Each Limited Partner covenants and agrees with the General Partner that all Common Units delivered for exchange shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be under any obligation to acquire Common Units which are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the transfer of its Common Units to the Partnership or the General Partner, such Limited PartnerPartner shall assume and pay such transfer tax.
Appears in 1 contract
Samples: Limited Partnership Agreement (Griffin Realty Trust)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 8.5(d), 8.5(e) and 2.5 hereof8.5(f) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts Partner, other than the General Partner, shall have the right (the “"Exchange Right”), exercisable (i") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “"Exchanging Partner”"); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.5(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.5(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner's exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Stock in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Stock being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being "closely held" within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.5(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "Restriction Notice") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under section 7704 of the Code.
(f) Notwithstanding anything else in this Agreement to the contrary, Cornerstone Realty Advisors, LLC is prohibited from exchanging the Partnership Units purchased by it on July 15, 2005 for $200,000 cash at any time prior to July 15, 2007 and the General Partner hereby agrees that it will not permit the amendment of this Agreement to permit the exchange of the Partnership Units owned by Cornerstone Realty Advisors, LLC prior to July 15, 2007.
Appears in 1 contract
Samples: Limited Partnership Agreement (Cornerstone Core Properties REIT, Inc.)
Exchange Right. (a) Subject to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right (the “Exchange Right”8.05(b), exercisable (i8.05(c), 8.05(d), 8.05(e) and 8.05(f), on or after the date that which is one (1) year after the closing of the Offering or Offering, each Limited Partner, other than the Company, shall have the right (iithe "Exchange Right") upon to require the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “"Exchanging Partner”"); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a Company and/or the General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.05(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned offered to sell the Partnership Units described in the Notice of Exchange to the General Partner and the Company, and either of the General Partner or the Company (or both) may, in its sole and absolute discretion, elect to purchase directly and acquire such rights Partnership Units by paying to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner or the Company (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner or the Company shall acquire the Partnership Units offered for exchange by the exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner and/or the Company shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to a Notice of Exchange, they shall so notify the Exchanging Partner within five Business Days after the receipt by the Operating General Partner of such Notice of Exchange. Unless the General Partner and/or the Company (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), neither the General Partner nor the Company shall have any obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner's exercise of the Exchange Right. In the event the General Partner or the Company shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner or the Company, as the case may be, directly shall treat the transaction between the General Partner or the Company, as the case may be, and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner or the Company, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner or the Company pursuant to Section 8.05(b) (regardless of whether or not the General Partner or the Company would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limitation (as defined in the Articles of Incorporation) and calculated in accordance therewith, except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the Company being "closely held" within the meaning of Section 856(h) of the Code, (iv) cause the Company to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner's, the Partnership's, or a Subsidiary Partnership's, real property, within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Partner to be "integrated" with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act of 1933, as amended (the "Securities Act"). The General Partner or the Company, in their sole discretion, may waive the restriction on exchange set forth in this Section 8.05(c); provided, however, -------- ------- that in the event such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, -------- however, that the Company or the General Partner may elect to cause the ------- Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the Company to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the Company and the General Partner agree to use their best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "Restriction Notice") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Prentiss Properties Trust/Md)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 8.5(d) and 2.5 hereof8.5(e) below and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts Partner, other than the General Partner, shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.5(b) below; and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise deliver more than two Notices of Exchange during each calendar year unless the REIT Shares are then Publicly Traded, in which case there will be no limitation on the number of Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a may be delivered. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a) above, a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.5(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall treat the transaction between the General Partner, and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.5(a) and 8.5(b) above, a Limited Partner shall not be satisfied entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the Operating Partnership General Partner pursuant to Section 8.5(b) above (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, shares of the General Partner in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in shares of the General Partner being owned by fewer than 100 Persons (determined without reference to any rules of attribution and under the definition of “Person” in the Articles of Incorporation), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or any direct or indirect subsidiary (including, without limitation, partnerships, joint ventures and limited liability companies) of the General Partner’s or the CompanyPartnership’s real property, as within the case may bemeaning of Section 856(d)(2)(B) of the Code, (v) otherwise, directly or indirectly, cause the General Partner to fail to qualify as a REIT or (vi) cause the acquisition of REIT Shares by such Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.5(c); provided, however, that in the event such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners holding Partnership Units, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are necessary in order to avoid having the Partnership be treated as a “publicly traded partnership” under Section 7704 of the Code.
(f) Notwithstanding the provisions of Section 8.5(a) above, holders of LTIP Units shall not be entitled to the Exchange Right provided for in Section 8.5 hereof with respect to any LTIP Units they hold, unless and until such LTIP Units have been converted into Common Units (or any other class or series of Partnership Units entitled to such Assignee Exchange Right) in accordance with their terms. Notwithstanding the foregoing provisions of Section 8.5, and except as otherwise permitted by the award, plan or other agreement pursuant to which an LTIP Unit was issued, the Exchange Right shall not be exercisable with respect to any Common Unit issued upon conversion of an LTIP Unit until two years after the date on which the LTIP Unit was issued, provided however, that the foregoing restriction shall not apply if the Exchange Right is exercised by an LTIP Unit holder in connection with a transaction that falls within the definition of a “change in control” under the agreement or agreements pursuant to which the LTIP Units were issued to such Limited Partnerholder. Additionally, the requirement set forth in the first sentence of Section 8.5(a) above that Partnership Units for which the Exchange Right is exercised have been outstanding for one year prior to such exercise shall not apply with respect to Common Units issued upon the conversion of LTIP Units.
Appears in 1 contract
Samples: Limited Partnership Agreement (DCT Industrial Trust Inc.)
Exchange Right. (a) Subject to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right (the “Exchange Right”), exercisable (i) on or after the date that is one (1) year after the closing issuance of the Offering or (ii) upon the liquidation of the Operating Limited Partner’s Limited Partnership or the sale of all or substantially all of the assets of the Operating Partnership, Interest to exchange on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf in its capacity as General Partner of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A Limited Partner may exercise the Exchange Right in accordance with the terms of this Agreement from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership Units unless such Limited Partner then holds less than one thousand (1,000) Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee of a Limited Partner may exercise the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partner.
Appears in 1 contract
Samples: Exchange Rights Agreement (Independence Realty Trust, Inc)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d), and 2.5 hereof8.05(e), and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right,” and a Limited Partner exercising the Exchange Right, an “Exchanging Partner”), exercisable (i) to require the Partnership to redeem on or after the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a applicable Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner (such Partnership Units, the “Tendered Units”) at an exchange a redemption price equal to to, and in the form of, the Cash Amount or the REIT Shares Amount, as elected by the Partnership (acting through the General Partner) in its sole and absolute discretion; provided, that other than Partnership Common Units issued pursuant to either of the Cash Amount.
Acquisition Agreements, such Partnership Common Units shall have been outstanding for at least one year; and provided, further, that if the Partnership elects to deliver the REIT Shares Amount in redemption of the Tendered Units pursuant to this Section 8.05(a), and the General Partner does not elect to purchase the Tendered Units pursuant to Section 8.05(b), the Partnership shall direct the General Partner to issue and deliver the corresponding REIT Shares Amount to the Exchanging Partner on or prior to the Specified Exchange Date, in which case, (bi) the General Partner, acting as a distinct legal entity, shall assume directly the obligation of the Partnership to deliver the REIT Shares Amount to the Exchanging Partner, and (ii) such transaction shall be treated, for federal income tax purposes, as a transfer by the Exchanging Partner of such Tendered Units to the General Partner in exchange for REIT Shares. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Tendered Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.05(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Common Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Tendered Units so exchanged exchanged, to receive any distributions distribution paid with respect to such Tendered Units if the record date for such distribution is on or after the Specified Exchange Date with respect Date. In the event that the Partnership (acting through the General Partner) determines to pay the Exchanging Partner the REIT Shares Amount, and the REIT Shares Amount is not a whole number of shares, the Exchanging Partner shall be paid that number of REIT Shares which equals the nearest whole number less than such amount. In case of any reclassification of the REIT Shares (including, but not limited to, any reclassification upon a consolidation or merger in which the General Partner is the continuing entity) into securities other than REIT Shares, for purposes of this Section 8.05(a), the General Partner (or its successor) may thereafter exercise its right to purchase Tendered Units for the kind and amount of shares of such securities receivable upon such reclassification by a holder of the number of REIT Shares for which such Tendered Units could be purchased pursuant to this Section 8.05(a) immediately prior to such Partnership Unitsreclassification.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Tendered Units to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Tendered Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Tendered Units and shall be treated for all purposes of this Agreement as the owner of such Tendered Units. If the General Partner shall elect to exercise its right to purchase Tendered Units under this Section 8.05(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Tendered Units from the Exchanging Partner pursuant to this Section 8.05(b) or the Partnership shall elect to deliver the REIT Shares Amount in satisfaction of the Partnership’s obligations under Section 8.05(a), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Tendered Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Tendered Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right. In the event that the General Partner determines to pay the Exchanging Partner the REIT Shares Amount, and the REIT Shares Amount is not a whole number of shares, the Exchanging Partner shall be paid that number of REIT Shares which equals the nearest whole number less than such amount. In case of any reclassification of the REIT Shares (including, but not limited to, any reclassification upon a consolidation or merger in which the General Partner is the continuing entity) into securities other than REIT Shares, for purposes of this Section 8.05(b), the Partnership (or its successor) may thereafter exercise its right to redeem Tendered Units for the kind and amount of shares of such securities receivable upon such reclassification by a holder of the number of REIT Shares for which such Tendered Units could be purchased pursuant to this Section 8.05(b) immediately prior to such reclassification.
(c) Notwithstanding the provisions of Sections 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date pursuant to Section 8.05(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.05) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner’s or the Partnership’s real property within the meaning of Section 856(d)(2)(B) of the Code (except to the extent the General Partner determines that such ownership would be permitted pursuant to Section 856(d)(8)), (v) cause the acquisition of REIT Shares by such Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act or (vi) would otherwise be prohibited under applicable federal or state securities laws. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.05(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of Tendered Units hereunder to occur on the Specified Exchange Date or as soon thereafter as is reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are reasonably necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
(f) Each Limited Partner covenants and agrees with the General Partner that all Tendered Units shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be satisfied by under any obligation to acquire Tendered Units that are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the Operating transfer of its Tendered Units to the Partnership or the CompanyGeneral Partner, as the case may be, directly to such Assignee and not to such Limited PartnerPartner shall assume and pay such transfer tax.
Appears in 1 contract
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 8.4(d), 8.4(e) and 2.5 hereof8.4(f) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.4(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
(f) Notwithstanding anything else in this Agreement to the contrary, Xxxxxxx Capital Essential Asset Advisor II, LLC is prohibited from exchanging or otherwise transferring the Partnership Units purchased by it on February 11, 2014 for $200,000 cash, so long as it continues acting as the Advisor pursuant to the Advisory Agreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Griffin Capital Essential Asset REIT II, Inc.)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 8.4(d) and 2.5 hereof8.4(e) below and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Common Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts Partner, other than the General Partner, shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided, that such Common Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Common Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b) below; and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise deliver more than two Notices of Exchange during each calendar year unless the REIT Shares are then Publicly Traded, in which case there will be no limitation on the number of Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a may be delivered. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership 1,000 Common Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership 1,000 Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Common Units so exchanged exchanged, to receive any distributions distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a) above, a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Common Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Common Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Units offered for exchange by the exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Common Units. If the General Partner shall elect to exercise its right to purchase Common Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall treat the transaction between the General Partner, and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Common Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with any issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b) above, a Limited Partner shall not be satisfied entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the Operating Partnership General Partner pursuant to Section 8.4(b) above (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, shares of the General Partner in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in shares of the General Partner being owned by fewer than 100 Persons (determined without reference to any rules of attribution and under the definition of “Person” in the Articles of Incorporation), except as provided in the Articles of Incorporation, result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 9.8% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or any direct or indirect subsidiary (including, without limitation, partnerships, joint ventures and limited liability companies) of the General Partner’s or the CompanyPartnership’s real property, as within the case may bemeaning of Section 856(d)(2)(B) of the Code, (v) otherwise, directly or indirectly, cause the General Partner to fail to qualify as a REIT or (vi) cause the acquisition of REIT Shares by such Assignee Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c); provided, however, that in the event such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Common Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded Partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners holding Common Units, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid having the Partnership be treated as a “publicly traded partnership” under Section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Americold Realty Trust)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 and 2.5 hereof8.4(d), and subject 8.4(e) and the provisions of any agreements between the Partnership and one or more holders of Common Units with respect to any limitations under applicable lawCommon Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts holder of Common Units shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Common Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Common Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the further, that no holder of Common Units may deliver more than two (2) Notices of Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) during each calendar year. A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership 1,000 Common Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership 1,000 Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Common Units so exchanged exchanged, to receive any distributions distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Common Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Common Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Common Units. Without limiting the foregoing, if the General Partner elects to purchase such Common Units by paying the REIT Shares Amount to the Exchanging Partner, the General Partner shall purchase either (i) Limited Partnership Interests consisting of Class A Units or Class A-1 Units which shall be exchanged for Class A REIT Shares and/or (ii) Limited Partnership Interests consisting of Class T Units which shall be exchanged for Class T REIT Shares, as applicable. The class of the shares purchased by the General Partner and exchanged by the Exchanging Partner shall be designated on the Notice of Exchange. If the General Partner shall elect to exercise its right to purchase Common Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five (5) Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Common Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.4(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, nine and nine-tenths percent (9.9%) or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional one hundred eighty (180) days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Common Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
(f) Each Limited Partner covenants and agrees with the General Partner that all Common Units delivered for exchange shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be under any obligation to acquire Common Units which are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the transfer of its Common Units to the Partnership or the General Partner, such Limited PartnerPartner shall assume and pay such transfer tax.
Appears in 1 contract
Samples: Limited Partnership Agreement (SmartStop Self Storage REIT, Inc.)
Exchange Right. (a) Subject From and after the end of the Restricted Period, a holder of such series of Exchangeable Units shall, from time to Sections 2.2time in accordance with this Article 2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts have the right to require the Partnership to repurchase (the “Exchange Right”), exercisable (i) on any or after the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets Exchangeable Units of such series held by such holder for either (A) the Operating PartnershipExchanged Shares or (B) the Cash Amount, the form of consideration to exchange be determined by the General Partner for and on a Specified Exchange Date all or a portion behalf of the Partnership Units held by such Limited Partner at an exchange price equal to and in its sole discretion. Written notice of the determination of the form of consideration shall be given to the Cash Amountholder of the Exchangeable Units exercising the Exchange Right no later than 5 Business Days after receipt of a given Exchange Notice.
(b) To exercise the Exchange Right, the holder shall present and surrender at the office of the Partnership (or at any office of the Registrar and Transfer Agent as may be specified by the Partnership by notice to the holders of Exchangeable Units) (i) a duly executed Exchange Notice and (ii) the certificate or certificates, if any, representing the Exchangeable Units which the holder desires to have exchanged, together with (iii) such additional documents and instruments as the Registrar and Transfer Agent may reasonably require pursuant to its standard and customary practices (but, in any event, excluding any representations and warranties other than as to ownership and authority) or as required by law (e.g., Internal Revenue Service Forms W-8 or W-9); provided, however, that, with respect to any exercise of the Exchange Right prior to the third anniversary of the Unit Effective Time, unless waived by Holdings, it shall be a further condition precedent to the obligation of the Partnership to repurchase such Units, and the Holder of such Units shall not be permitted to exercise an Exchange Right, unless: (x) Holdings has received a written opinion (a “7874 Opinion”) of Ernst & Young LLP (or if Ernst & Young LLP is unwilling or unable to perform, another independent nationally recognized law or accounting firm) (the “Tax Firm”) to the effect that the exercise of such Exchange Right should not cause Holdings to be treated as (1) a “surrogate foreign corporation” (within the meaning of Section 7874(a)(2)(B) of the Code) or (2) a “domestic corporation” (within the meaning of Section 7874(b) of the Code) (including, for the avoidance of doubt, any successor sections of the Code with respect to (1) and (2) above following any change in law) and (y) Holdings’ independent auditor has determined (an “Auditor Determination”) that no reserve shall be required for financial accounting purposes (pursuant to Financial Accounting Standards Board Interpretation No. 48, as such guidance may be modified by future FASB interpretations, statements, or other FASB guidance) relating to Code Section 7874 of the Code as a result of the exercise of such Exchange Right. The Exchange Right Notice shall be exercised pursuant to a Notice (A) specify the number of Exchange delivered to Exchangeable Units in respect of which the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who holder is exercising the Exchange Right (the “Exchanging PartnerSubject Units”) and (B) state the Business Day on which the holder desires to have the Partnership exchange the Subject Units (the “Exchange Date”); provided, however, that (x) the Company, on behalf Exchange Date must be within 10 Business Days of the Operating Partnershipdate on which the Exchange Notice is received by the Partnership (unless otherwise extended by Holdings in connection with obtaining the 7874 Opinion and Auditor Determination as provided herein) and (y) each holder of Exchangeable Units, together with its Affiliates, may elect, after a submit only one Exchange Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2per calendar month.
(c) A Limited Partner may Holdings shall act in good faith and use commercially reasonable efforts to obtain the 7874 Opinion and the Auditor Determination as soon as reasonably practical following the exercise by a holder of an Exchange Right. In furtherance of the foregoing, to better ensure that the analysis necessary to obtain the 7874 Opinion and the Auditor Determination can be completed as soon as practicable following the date on which a holder exercises an Exchange Right, prior to the end of the Restricted Period, Holdings shall (i) retain the Tax Firm to (a) deliver to Holdings a 7874 Opinion (based on the assumption that the Exchange Right from time to time with respect to part or all Date is the day immediately following the last day of the Partnership Units Restricted Period), or to do all work necessary to render such an opinion and (b) “bring down” or otherwise render such an opinion (assuming no change in law or fact would prevent it from doing so) at each such time that it owns, as selected by a holder exercises an Exchange Right (unless Holdings intends to waive the Limited Partner, provided that, except as provided in 7874 Opinion condition) and (ii) retain its independent auditor to complete the Agreement, a Limited Partner may not exercise work that would be required for the auditor to make the Auditor Determination (based on the assumption that the Exchange Right for less than one thousand (1,000) Partnership Units unless such Limited Partner then holds less than one thousand (1,000) Partnership Date is the day immediately following the last day of the Restricted Period). At the request of any holder of Exchangeable Units, Holdings (after consulting with its auditor and the Tax Firm) will promptly notify such holder (x) whether the 7874 Opinion or the Auditor Determination can reasonably be expected to be obtained based on the facts and law in which event effect at the Limited Partner must exercise the Exchange Right for all time of such request or (y) whether or not the Partnership Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect would be prepared to any Partnership Units so exchanged to receive any distributions paid after waive the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee of a Limited Partner may exercise requirement that the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner shall 7874 Opinion or the Auditor Determination would be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In required in connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partnergiven Exchange Notice.
Appears in 1 contract
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d), 8.05(e) and 2.5 hereof8.05(f) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts Partner, other than the Company, shall have the right (the “"Exchange Right”), exercisable (i") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, PROVIDED that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “"Exchanging Partner”"); providedPROVIDED, howeverHOWEVER, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a Company and/or the General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.05(b); and PROVIDED, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A FURTHER, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee Date. Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned offered to sell the Partnership Units described in the Notice of Exchange to the General Partner and the Company, and either of the General Partner or the Company (or both) may, in its sole and absolute discretion, elect to purchase directly and acquire such rights Partnership Units by paying to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner or the Company (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner or the Company shall acquire the Partnership Units offered for exchange by the exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner and/or the Company shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to a Notice of Exchange, they shall so notify the Exchanging Partner within five Business Days after the receipt by the Operating General Partner of such Notice of Exchange. Unless the General Partner and/or the Company (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), neither the General Partner nor the Company shall have any obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner's exercise of the Exchange Right. In the event the General Partner or the Company shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner or the Company, as the case may be, directly shall treat the transaction between the General Partner or the Company, as the case may be, and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner or the Company, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right. Notwithstanding the provisions of Section 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner or the Company pursuant to Section 8.05(b) (regardless of whether or not the General Partner or the Company would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limitation (as defined in the Amended and Restated Articles of Incorporation) and calculated in accordance therewith, except as provided in the Amended and Restated Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Amended and Restated Articles of Incorporation, (iii) result in the Company being "closely held" within the meaning of Section 856(h) of the Code, (iv) cause the Company to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner's, the Partnership's, or a Subsidiary Partnership's, real property, within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Partner to be "integrated" with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act of 1933, as amended (the "Securities Act"). The General Partner or the Company, in their sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.05(c); PROVIDED, HOWEVER, that in the event such restriction is waived, the Exchanging Partner shall be paid the Cash Amount. Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; PROVIDED, HOWEVER, that the Company or the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the Company to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the Company and the General Partner agree to use their best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible. Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "Restriction Notice") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Ocwen Asset Investment Corp)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 and 2.5 hereof8.5(d), and subject 8.5(e) and the provisions of any agreements between the Partnership and one or more holders of Common Units with respect to any limitations under applicable lawCommon Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts holder of Common Units shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Common Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Common Units subject to the Notice of Exchange is deliveredpursuant to Section 8.5(b); and provided, to satisfy the further, that no holder of Common Units may deliver more than two Notices of Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) during each calendar year. A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership 1,000 Common Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership 1,000 Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Common Units so exchanged exchanged, to receive any distributions distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Common Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Common Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Common Units. If the General Partner shall elect to exercise its right to purchase Common Units under this Section 8.5(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five business days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Common Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.5(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Common Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
(f) Each Limited Partner covenants and agrees with the General Partner that all Common Units delivered for exchange shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be under any obligation to acquire Common Units which are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the transfer of its Common Units to the Partnership or the General Partner, such Limited PartnerPartner shall assume and pay such transfer tax.
Appears in 1 contract
Samples: Limited Partnership Agreement (Griffin Capital Essential Asset REIT II, Inc.)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d), 8.05(e) and 2.5 hereof8.05(f) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts Partner, other than the General Partner, shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.05(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to a Notice of Exchange, they shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), the General Partner shall have any obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee and Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.05(b) (regardless of whether or not to such Limited Partner.the General Partner would in fact exercise its rights under Section
Appears in 1 contract
Samples: Limited Partnership Agreement (Wells Real Estate Investment Trust Ii Inc)
Exchange Right. (a) Subject From and after the date that is six months following the date of the Merger Effective Time, a holder of Exchangeable Units shall, at any time and from time to Sections 2.2time, 2.3, 2.4 and 2.5 hereofhave the right to require the Partnership to repurchase any or all of the Exchangeable Units held by such holder in exchange for, and subject in connection therewith the right to any limitations under applicable lawrequire TopCo to issue, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right applicable Exchanged Shares (the “Exchange Right”); provided, exercisable however, that a holder of Exchangeable Units may exercise its Exchange Right at any time to effect a transfer to be effective immediately prior to (iand if so elected by such holder, subject to) on or after the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, a TopCo Control Transaction so that such Exchanged Shares to exchange on a Specified Exchange Date all or a portion of the Partnership Units held be received by such Limited Partner at an exchange price equal holder in such repurchase will have the full right and power to participate in such Topco Control Transaction (and such right and power shall be expressly recognized and provided for in the form of the Cash Amountany agreement relating to any such Topco Control Transaction).
(b) To exercise the Exchange Right, the holder shall present and surrender at the office of the Partnership (or at any office of the Registrar and Transfer Agent as may be specified by the Partnership by notice to the holders of Exchangeable Units) a duly executed Exchange Notice together with such additional customary documents and instruments as the Registrar and Transfer Agent or the Partnership may reasonably require; provided that a definitive list of any such documents and instruments and copies thereof shall be posted publicly on the Company’s website. The Exchange Right Notice shall be exercised pursuant to a Notice specify the number and class of Exchange delivered to Exchangeable Units in respect of which the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who holder is exercising the Exchange Right (the “Exchanging PartnerSubject Units”); provided) and, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership Units unless such Limited Partner then holds less than one thousand (1,000) Partnership case of Class C Exchangeable Units, in which event the whether such Units are to be exchanged for TopCo Class C Fully Voting Shares or TopCo Class C Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee of a Limited Partner may exercise the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partner.Voting Shares. 32605634_45
Appears in 1 contract
Samples: Limited Partnership Agreement (Loral Space & Communications Inc.)
Exchange Right. (a) Subject to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each the New Limited Partner Partner, and each the New Limited Partner hereby accepts the right (the “Exchange Right”), exercisable (i) on or after the date that is one (1) year after the closing date of the Offering this Agreement or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a Specified Exchange Date all or a portion of the Partnership Units held by such the New Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, by the New Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A The New Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the New Limited Partner, provided that, except as provided in the Agreement, a Limited Partner (including the New Limited Partner) may not exercise the Exchange Right for less than one thousand (1,000) Partnership Units unless such Limited Partner then holds less than one thousand (1,000) Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee of a the New Limited Partner may exercise the rights of such the New Limited Partner pursuant to this Article 2, and such the New Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a the New Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such the New Limited Partner.
Appears in 1 contract
Samples: Exchange Rights Agreement (American Realty Capital Trust III, Inc.)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 8.4(d) and 2.5 hereof8.4(e) below and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts Partner, other than the General Partner, shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b) below; and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise deliver more than two Notices of Exchange during each calendar year unless the REIT Shares are then Publicly Traded, in which case there will be no limitation on the number of Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a may be delivered. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a) above, a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall treat the transaction between the General Partner, and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with any issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b) above, a Limited Partner shall not be satisfied entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the Operating Partnership General Partner pursuant to Section 8.4(b) above (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, shares of the General Partner in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in shares of the General Partner being owned by fewer than 100 Persons (determined without reference to any rules of attribution and under the definition of “Person” in the Articles of Incorporation), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or any direct or indirect subsidiary (including, without limitation, partnerships, joint ventures and limited liability companies) of the General Partner’s or the CompanyPartnership’s real property, as within the case may bemeaning of Section 856(d)(2)(B) of the Code, (v) otherwise, directly or indirectly, cause the General Partner to fail to qualify as a REIT or (vi) cause the acquisition of REIT Shares by such Assignee Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c); provided, however, that in the event such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners holding Partnership Units, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid having the Partnership be treated as a “publicly traded partnership” under Section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Americold Realty Trust)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 8.5(d) and 2.5 8.5(e) hereof, and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited which is not a Subsidiary of the General Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i"EXCHANGE RIGHT") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) The Exchange Right Amount to be paid by the Partnership; provided, that such redemption shall be exercised pursuant not occur before the date that is one year following the closing of the initial public offering of shares of the General Partner's common stock, subject to a Notice of Exchange delivered any restriction agreed to the Operating Partnership, with a copy delivered to the Company, by in writing between the Limited Partner who is exercising the Exchange Right (the “"EXCHANGING PARTNER") and the General Partner. The Exchange Right shall be exercised pursuant to the delivery of an Exchange Notice to the Partnership (with a copy to the General Partner) by the Exchanging Partner”); provided, however, that the CompanyPartnership shall, on behalf of in its sole and absolute discretion, have the Operating Partnershipoption to deliver either the Cash Amount or the REIT Shares Amount; provided, may electfurther, after a Notice of Exchange is delivered, that the Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A Notice; and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.5(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner's exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being "closely held" within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner's, the Partnership's, or a Subsidiary Partnership's real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Partner to be "integrated" with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.5(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount or otherwise. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner is authorized to take any action that it determines to be necessary or appropriate to cause the Partnership to comply with any withholding requirements established under the Code or any other federal, state or local law that apply upon an Exchanging Partner's exercise of the Exchange Right. If an Exchanging Partner believes that it is exempt from such withholding upon the exercise of the Exchange Right, such Partner must furnish the General Partner with a FIRPTA Certificate in the form attached hereto as Exhibit C. If the Partnership or the CompanyGeneral Partner is required to withhold and pay over to any taxing authority any amount upon an Exchanging Partner's exercise of the Exchange Right and if the Exchange Amount equals or exceeds the amount required to be withheld, the amount required to be withheld shall be treated as an amount received by such Partner upon exchange of its Partnership Units. If, however, the case may beExchange Amount is less than the amount required to be withheld, directly the Exchanging Partner shall not receive any portion of the Exchange Amount, the Exchange Amount shall be treated as an amount received by such Partner upon exchange of its Partnership Units, and the Partner shall contribute the excess of the amount withheld over the Exchange Amount to the Partnership before the Partnership is required to pay over such Assignee excess to a taxing authority.
(f) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "RESTRICTION NOTICE") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under Section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Gladstone Commercial Corp)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d) and 2.5 8.05(e) hereof, and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i"EXCHANGE RIGHT") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership; provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”"EXCHANGING PARTNER"); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.05(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), the General Partner shall have no obligation to the Exchanging Partner or the CompanyPartnership with respect to the Exchanging Partner's exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the case General Partner may bereasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.05(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being "closely held" within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner's, the Partnership's, or a Subsidiary Partnership's real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Assignee Partner to be "integrated" with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act, provided, that if such Partner delivers an opinion of counsel that is reasonably satisfactory to the General Partner providing that the acquisition of REIT Shares by such Partner will not be "integrated" with any other distribution of REIT Shares for purposes of complying with the Securities Act, then the General Partner may not prevent such Partner from exercising the Exchange Right by virtue of this clause (v). The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.05(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "RESTRICTION NOTICE") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under Section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Behringer Harvard Reit I Inc)
Exchange Right. (a) A. Subject to Sections 2.22.1.B, 2.32.1.C, 2.4 2.1.D and 2.5 2.1.E hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right (the “Exchange Right”"EXCHANGE RIGHT"), exercisable (i) on or after the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating PartnershipIPO, to exchange on a Specified Exchange Date all or a portion of the Partnership OP Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) . The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”"EXCHANGING PARTNER"); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) 2.1.B. A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership OP Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership OP Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership OP Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) . Any Assignee of a Limited Partner may exercise the rights of such Limited Partner pursuant to this Article 2Section 2.1, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) . In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partner.
B. Notwithstanding the provisions of Section 2.1.A, the Company may, on behalf of the Operating Partnership, in its sole and absolute discretion, elect to satisfy an Exchanging Partner's Exchange Right by exchanging REIT Stock and rights equal to the REIT Stock Amount on the Specified Exchange Date for the OP Units offered for exchange by the Exchanging Partner. In the event the Company shall elect to satisfy, on behalf of the Operating Partnership, an Exchanging Partner's Exchange Right by exchanging REIT Stock for the OP Units offered for exchange, (i) the Company hereby agrees to notify the Exchanging Partner within five (5) Business Days after the receipt by the Company of such Notice of Exchange, (ii) each Exchanging Partner hereby agrees to execute such documents and instruments as the Company may reasonably require in connection with the issuance of REIT Stock upon exercise of the Exchange Right and (iii) the Company hereby agrees to deliver stock certificates representing fully paid and nonassessable shares of REIT Stock.
C. Notwithstanding anything herein to the contrary, the Company shall not be entitled to satisfy an Exchanging Partner's Exchange Right pursuant to Section 2.1.B if the delivery of REIT Stock to such Limited Partner by the Company pursuant to Section 2.1.B (regardless of the Operating Partnership's obligations to the Limited Partner under Section 2.1.A) (i) would be prohibited under the Articles of Incorporation of the Company, (ii) would otherwise jeopardize the REIT status of the Company, or (iii) would cause the acquisition of the REIT Stock by the Limited Partner to be "integrated" with any other distribution of REIT Stock by the Company for purposes of complying with the registration provisions of the Securities Act of 1933, as amended.
D. Any Cash Amount to be paid to an Exchanging Partner shall be paid on the Specified Exchange Date; provided, however, that the Operating Partnership -------- ------- may elect to cause the Specified Exchange Date to be delayed for up to an additional 60 days to the extent required for the Company to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount by the Operating Partnership.
E. Notwithstanding the provisions of Section 2.1., any person to whom OP Units have been pledged, in compliance with the terms of the Lock-up Agreement, may exercise its Exchange Right prior to the date that is one (1) year after the closing of the IPO, provided however, such OP Units shall only be exchangeable for the Cash Amount.
F. The Exchange Right shall expire with respect to any OP Units for which an Exchange Notice has not been delivered to the Operating Partnership and the Company on or before December 31, 2046.
G. Any exchange of OP Units pursuant to this Article 2 shall be deemed to have occurred as of the Specified Exchange Date for all purposes, including without limitation the payment of distributions or dividends in respect of OP Units or REIT Stock, as applicable. Any OP Units acquired by the Company pursuant to an exercise by any Limited Partner of an Exchange Right shall be deemed to be acquired by and reallocated or reissued to the Company. AGH GP, as general partner of the Operating Partnership, shall amend the Partnership Agreement to reflect each such exchange and reallocation or reissuance of OP Units and each corresponding recalculation of the OP Units of the Limited Partners. The number of OP Units to be reallocated or reissued to the Company shall equal the number of shares of REIT Stock issued to a Limited Partner upon exercise of an Exchange Right in accordance with the terms of this Agreement.
Appears in 1 contract
Samples: Master Alliance Agreement (American General Hospitality Corp)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 8.5(d) and 2.5 8.5(e) hereof, and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited which is not an Affiliate of the General Partner hereby accepts shall have the right (the “Exchange RightEXCHANGE RIGHT”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) The Exchange Right Amount to be paid by the Partnership; provided, that such redemption shall be exercised pursuant not occur before the date that is one year following the closing of the initial public offering of shares of Gladstone Commercial Corporation’s common stock, subject to a Notice of Exchange delivered any restriction agreed to the Operating Partnership, with a copy delivered to the Company, by in writing between the Limited Partner who is exercising the Exchange Right (the “EXCHANGING PARTNER”) and the General Partner. The Exchange Right shall be exercised pursuant to the delivery of an Exchange Notice to the Partnership (with a copy to the General Partner) by the Exchanging Partner”); provided, however, that the CompanyPartnership shall, on behalf of in its sole and absolute discretion, have the Operating Partnershipoption to deliver either the Cash Amount or the REIT Shares Amount; provided, may electfurther, after a Notice of Exchange is delivered, that the Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A Notice; and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.5(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as Gladstone Commercial Corporation may reasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in Gladstone Commercial Corporation being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause Gladstone Commercial Corporation to own, directly or constructively, 10% or more of the ownership interests in a tenant of Gladstone Commercial Corporation’s, the Partnership’s, or a Subsidiary Partnership’s real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.5(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for Gladstone Commercial Corporation to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount or otherwise. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner is authorized to take any action that it determines to be necessary or appropriate to cause the Partnership to comply with any withholding requirements established under the Code or any other federal, state or local law that apply upon an Exchanging Partner’s exercise of the Exchange Right. If an Exchanging Partner believes that it is exempt from such withholding upon the exercise of the Exchange Right, such Partner must furnish the General Partner with a FIRPTA Certificate in the form attached hereto as Exhibit C. If the Partnership or the CompanyGeneral Partner is required to withhold and pay over to any taxing authority any amount upon an Exchanging Partner’s exercise of the Exchange Right and if the Exchange Amount equals or exceeds the amount required to be withheld, the amount required to be withheld shall be treated as an amount received by such Partner upon exchange of its Partnership Units. If, however, the case may beExchange Amount is less than the amount required to be withheld, directly the Exchanging Partner shall not receive any portion of the Exchange Amount, the Exchange Amount shall be treated as an amount received by such Partner upon exchange of its Partnership Units, and the Partner shall contribute the excess of the amount withheld over the Exchange Amount to the Partnership before the Partnership is required to pay over such Assignee excess to a taxing authority.
(f) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “RESTRICTION NOTICE”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Gladstone Commercial Corp)
Exchange Right. (a) 8.4.1 Subject to Sections 2.2the provisions in this Section 8.4 and the provisions of any agreements between the Partnership and 1 or more Common Limited Partners with respect to Common Limited Partnership Units held by them, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Common Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) beginning on or after the date that is one (1) year after Exchange Date, to require the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a Specified Exchange Date all or a portion of the Common Limited Partnership Units held by such Common Limited Partner at an exchange price equal for the applicable Cash Amount to and in be paid by the form Partnership (with the Cash Amount determined 60 business days after the receipt of the Cash Amount.
(b) Exchange Notice for purposes of this Section 8.4), provided that such Common Limited Partnership Units shall have been outstanding for at least 1 year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Common Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Common Limited Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.4.2; and provided, further, that no Common Limited Partner may exercise the deliver more than 2 Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Common Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Common Limited Partnership Units unless or, if such Common Limited Partner then holds less than one thousand (1,000) 1,000 Common Limited Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Common Limited Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Common Limited Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Common Limited Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(e) Any Assignee 8.4.2 Notwithstanding the provisions of Section 8.4.1, a Common Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Common Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole discretion, elect to purchase directly and acquire such Common Limited Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Limited Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Common Limited Partnership Units. If the General Partner shall elect to exercise its right to purchase Common Limited Partnership Units under this Section 8.4.2 with respect to the Exchange Notice, it shall so notify the Exchanging Partner within 10 business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole discretion) shall exercise its right to purchase Common Limited Partnership Units from the Exchanging Partner pursuant to this Section 8.4.2 the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Limited Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4.2, the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Common Limited Partnership Units to the General Partner.
8.4.3 Notwithstanding the provisions of Sections 8.4.1 and 8.4.2, a Common Limited Partner shall not be entitled to exercise the Exchange Right if such exercise would result in, (i) any Person owning shares of the General Partner in excess of the Common Stock Ownership Limit or the Aggregate Stock Ownership Limit (or, if applicable, the Excepted Holder Limit), (ii) the REIT Shares being owned by less than 100 persons, (iii) the General Partner being “closely held” within the meaning of Section 856(h) of the Code or (iv) the General Partner owning, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole discretion, may waive any of the restriction on exchange set forth in this Section 8.4.3.
8.4.4 Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of the REIT Shares upon exercise of the Exchange Right including, without limitation, an assignment of the Common Limited Partnership Units. Each Common Limited Partner represents, warrants and certifies that it has, and will have, marketable and unencumbered title to its Common Limited Partnership Units, free and clear of any liens or the rights or interest of any other Person and covenants and agrees to deliver its Common Limited Partnership Units free of any such items. The Common Limited Partner further represents, warrants and certifies that it has, and will have, the full right, power and authority to transfer and surrender its Common Limited Partnership Units and that it has obtained, and will obtain, the consent or approval of all Persons, if any, having the right to consent to or approve of such transfer and surrender. The General Partner shall have no obligation to acquire Common Limited Partnership Units (i) to the extent that any such Common Limited Partnership Units are subject to any liens, encumbrances or the right or interest of any other Person or (ii) in the event that the Common Limited Partner shall fail to give the General Partner adequate assurances that such Common Limited Partnership Units are not subject to any such liens, encumbrances or the right or interest of any other Person or shall fail to fully indemnify the General Partner as set forth below; provided, however, the General Partner may, in its sole discretion, acquire Common Limited Partnership Units subject to a lien, encumbrance or right of another Person and in such case the General Partner shall reduce the Cash Amount (or REIT Shares Amount) paid to the Common Limited Partner by the amount of the lien, encumbrance or right of any other Person. The Common Limited Partner agrees to indemnify and hold the General Partner harmless from and against any and all liabilities, charges, costs and expenses relating to such Common Limited Partner’s Common Limited Partnership Units which are subject to the Exchange Right including, without limitation, with respect to any liens, encumbrances or rights or interests of other Persons. Each Common Limited Partner further agrees that, in the event any state or local transfer tax is payable as a result of the transfer of its Common Limited Partnership Units to the General Partner pursuant to the Exchange Right, such Common Limited Partner shall assume and pay such transfer tax.
8.4.5 Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days. Notwithstanding the foregoing, the General Partner agrees to use its commercially reasonable efforts to cause the closing of the exchange to occur as quickly as reasonably possible.
8.4.6 Notwithstanding any other provision of this Agreement (and considering the provision set forth in Section 9.7.3), the General Partner shall place appropriate restrictions on the ability of the Common Limited Partners to exercise their Exchange Rights or limit any transfer as and if deemed necessary to ensure that the Partnership is not treated as a corporation or a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each Common Limited Partner and each other Person that holds interests in the Partnership convertible for, or other instruments exercisable for, Common Limited Partnership Units.
8.4.7 A fee may be charged in connection with an exercise of Exchange Rights pursuant to this Section 8.4 to cover the expenses of the Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited General Partner.
8.4.8 The exercise of an Exchange Right by a Common Limited Partner will be subject to compliance with securities laws applicable to the exchange and therefore the Exchange Right may not be exercisable in the absence of an effective registration statement or an available exemption from registration.
Appears in 1 contract
Samples: Limited Partnership Agreement (Lodging Fund REIT III, Inc.)
Exchange Right. (a) Subject to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Series B Partner and each Limited Series B Partner hereby accepts the right (the “Exchange Right”), exercisable on the earlier to occur of (i) on or after the date that is one (1) year after the closing issuance of the Offering Series B Partner’s Series B Preferred Units or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a Specified Exchange Date all or a portion of the Partnership Series B Preferred Units held by such Limited Series B Partner at an exchange price equal to and in the form of the Cash Amount.
(b) The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, by the Limited Series B Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A Limited Series B Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Series B Preferred Units that it owns, as selected by the Limited Series B Partner, provided that, except as provided in the Agreement, a Limited Series B Partner may not exercise the Exchange Right for less than one thousand hundred (1,000100) Partnership Series B Preferred Units unless such Limited Series B Partner then holds less than one thousand hundred (1,000100) Partnership Series B Preferred Units, in which event the Limited Series B Partner must exercise the Exchange Right for all of the Partnership Series B Preferred Units held by such Limited Series B Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Series B Preferred Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Series B Preferred Units.
(e) Any Assignee of a Limited Series B Partner may exercise the rights of such Limited Series B Partner pursuant to this Article 2, and such Limited Series B Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Series B Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Series B Partner.
Appears in 1 contract
Samples: Third Amended and Restated Agreement of Limited Partnership (Independence Realty Trust, Inc)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 8.4(d), 8.4(e) and 2.5 hereof8.4(f) and the provisions of any agreements between the Partnership and one or more holders of Common Units with respect to Common Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts holder of Common Units shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Common Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Common Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the further, that no holder of Common Units may deliver more than two Notices of Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) during each calendar year. A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less fewer than one thousand (1,000) Partnership 1,000 Common Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership 1,000 Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Common Units so exchanged exchanged, to receive any distributions distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Common Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Common Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Common Units. If the General Partner shall elect to exercise its right to purchase Common Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five business days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Common Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.4(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Common Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
(f) Notwithstanding anything else in this Agreement to the contrary, SSSHT Advisor, LLC is prohibited from exchanging or otherwise transferring the Partnership Units purchased by it on October 5, 2016 for $1,000 cash and the additional Partnership Units purchased by it on September 28, 2017 for $199,000, so long as it continues acting as the Advisor pursuant to the Advisory Agreement.
(g) Each Limited Partner covenants and agrees with the General Partner that all Common Units delivered for exchange shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be under any obligation to acquire Common Units which are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the transfer of its Common Units to the Partnership or the General Partner, such Limited PartnerPartner shall assume and pay such transfer tax.
Appears in 1 contract
Samples: Limited Partnership Agreement (Strategic Student & Senior Housing Trust, Inc.)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 8.5(d) and 2.5 8.5(e) hereof, and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited which is not an Affiliate of the General Partner hereby accepts shall have the right (the “Exchange RightEXCHANGE RIGHT”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) The Exchange Right Amount to be paid by the Partnership; provided, that such redemption shall be exercised pursuant not occur before the date that is one year following the closing of the initial public offering of shares of the General Partner’s common stock, subject to a Notice of Exchange delivered any restriction agreed to the Operating Partnership, with a copy delivered to the Company, by in writing between the Limited Partner who is exercising the Exchange Right (the “EXCHANGING PARTNER”) and the General Partner. The Exchange Right shall be exercised pursuant to the delivery of an Exchange Notice to the Partnership (with a copy to the General Partner) by the Exchanging Partner”); provided, however, that the CompanyPartnership shall, on behalf of in its sole and absolute discretion, have the Operating Partnershipoption to deliver either the Cash Amount or the REIT Shares Amount; provided, may electfurther, after a Notice of Exchange is delivered, that the Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A Notice; and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.5(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or a Subsidiary Partnership’s real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.5(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount or otherwise. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner is authorized to take any action that it determines to be necessary or appropriate to cause the Partnership to comply with any withholding requirements established under the Code or any other federal, state or local law that apply upon an Exchanging Partner’s exercise of the Exchange Right. If an Exchanging Partner believes that it is exempt from such withholding upon the exercise of the Exchange Right, such Partner must furnish the General Partner with a FIRPTA Certificate in the form attached hereto as Exhibit C. If the Partnership or the CompanyGeneral Partner is required to withhold and pay over to any taxing authority any amount upon an Exchanging Partner’s exercise of the Exchange Right and if the Exchange Amount equals or exceeds the amount required to be withheld, the amount required to be withheld shall be treated as an amount received by such Partner upon exchange of its Partnership Units. If, however, the case may beExchange Amount is less than the amount required to be withheld, directly the Exchanging Partner shall not receive any portion of the Exchange Amount, the Exchange Amount shall be treated as an amount received by such Partner upon exchange of its Partnership Units, and the Partner shall contribute the excess of the amount withheld over the Exchange Amount to the Partnership before the Partnership is required to pay over such Assignee excess to a taxing authority.
(f) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “RESTRICTION NOTICE”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (GLADSTONE LAND Corp)
Exchange Right.
(a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 and 2.5 hereof8.05(d), and subject to any limitations under applicable law8.05(e), after the Operating Partnership hereby grants to date which is two years after the acquisition of such units, each Limited Partner and each Limited Partner hereby accepts Partner, shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.05(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned offered to sell the Partnership Units described in the Notice of Exchange to the General Partner and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such rights Partnership Units by paying to the Exchanging Partner the Cash Amount on the Specified Exchange Date (or at the option of the General Partner, provided that such Assignee conversion is legally available and permissible under this Article VIII, in the form of Trust Shares based on the Conversion Factor), whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be bound by treated for all purposes of this Agreement as the owner of such Partnership Units. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), the General Partner shall not have any obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such rights by such Assignee.
(f) In connection with any Exchanging Partner’s exercise of such rights by an Assignee on behalf Exchange Right, and each of a Limited the Exchanging Partner, the Cash Amount or Partnership, and the REIT Stock AmountGeneral Partner, as the case may be, shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of Trust Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.05(a) and 8.05(b), a Limited Partner shall not be satisfied entitled to exercise the Exchange Right if the delivery of Trust Shares to such Partner on the Specified Exchange Date by the Operating Partnership General Partner pursuant to Section 8.05(b) (regardless of whether or not the CompanyGeneral Partner would in fact exercise its rights under Section 8.05(b) would: (i) result in such Partner or any other person owning, directly or indirectly, Trust Shares in excess of the ownership Limitation (as defined in the Declaration of Trust) and calculated in accordance therewith, except as provided in the Declaration of Trust, (ii) result in Trust Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Declaration of Trust, (iii) result in the Trust being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the Trust to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or a Subsidiary Partnership’s, real property, within the meaning of Section 856(d)(2)(D) of the Code, or (v) cause the acquisition of Trust Shares by such Partner to be “integrated” with any other distributions of Trust Shares for purposes of complying with the registration provisions of the Securities Act of 1933, as amended (the case “Securities Act”). The General Partner, in its sole discretion, may bewaive the restriction on exchange set forth in this Section 8.05(c); provided, directly however, that in the event such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the Trust to cause additional Trust Shares to be issued to provide financing to be used to make such Assignee payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
Appears in 1 contract
Exchange Right. (a) Subject to Sections 2.28.5(b)-(h) and Section 9.7, 2.3on or after the second anniversary of the Effective Date, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “"Exchange Right”), exercisable (i") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at for an exchange price payable by the Partnership equal to and in the form of the Cash Amount.
(b) . The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “"Exchanging Partner”"); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is delivered, pursuant to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) 8.5(b). A Limited Partner may exercise the Exchange Right from time to time time, without regard to frequency, with respect to part some or all of the Partnership Units that it owns, as selected by the such Limited Partner, provided that, except as provided in the Agreement, a but no Limited Partner may not exercise the Exchange Right for less than one a number of Partnership Units equal to ten thousand (1,00010,000) Partnership Units unless multiplied by the Conversion Factor or, if such Limited Partner then holds less than one thousand (1,000) such number of Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . Notwithstanding the foregoing provisions of this Section 8.5(a), the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible. The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(b) Notwithstanding the provisions of Section 8.5(a), a Limited Partner that exercises the Exchange Right shall be deemed to have offered to sell the Partnership Units described in the Notice of Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount, or the REIT Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units (and such Partnership Units shall thereupon be deemed for all purposes to be General Partnership Interests). If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.5(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner's exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.5(a) and Section 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right pursuant to Section 8.5(a) if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the Company pursuant to Section 8.5(b) (regardless of whether or not the Company would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit or the Look-Through Ownership Limitation, if applicable (as defined in the Certificate of Incorporation of the Company), and calculated in accordance therewith, except as provided in such Certificate of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Company's Certificate of Incorporation, (iii) result in the Company being "closely held" within the meaning of Section 856(h) of the Code, (iv) cause the Company to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner or the Partnership within the meaning of Section 856(d)(2)(B) of the Code, (v) cause the acquisition of REIT Shares by such Partner to be "integrated" with any other distribution of REIT Shares and thereby cause the Company to be in violation of the registration provisions of the Securities Act, (vi) result in the Partnership being considered a "publicly traded partnership" within the meaning of Section 7704 of the Code, or (vii) otherwise result in the Company's inability to qualify as a real estate investment trust under Sections 856 through 860 of the Code. The General Partner, in its sole discretion, may waive the restriction on exchange set forth in this Section 8.5(c); provided, however, that in the event such a restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on or before the Specified Exchange Date. Notwithstanding the foregoing, the General Partner and the Partnership agree to use their best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Any The Assignee of a any Limited Partner may exercise the rights of such Limited Partner pursuant to this Article 2Section 8.5 with respect to the Partnership Interests assigned to such Assignee, and such Limited Partner shall will be deemed to have assigned such rights to such Assignee and shall be bound by the such Assignee's exercise of such rights by such Assigneerights.
(f) In connection Each Limited Partner covenants and agrees with any exercise of such rights by an Assignee on behalf of a Limited the General Partner that all Partnership Units delivered for exchange hereunder shall be delivered to the Partnership or General Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by free and clear of all liens, and further agrees that, in the Operating event any state or local property transfer tax is payable as a result of the transfer of Partnership Units to the Partnership or the Company, General Partner (as the case may be), directly to such Assignee and not to such Limited Partner shall assume and pay such transfer tax. In the event that the General Partner permits the pledge of a Limited Partner's Partnership Units to a lender, the General Partner may agree, its sole discretion, to allow such lender, upon foreclosure of such Partnership Units, to exchange such Partnership Units prior to the second anniversary of the Effective Date; provided that any such exchange shall be effected by the Partnership in the form of the Cash Amount.
(g) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under Section 7704 of the Code.
(h) If the General Partner notifies the Limited Partners pursuant to Section 8.8(a) hereof, then notwithstanding any other provision herein the Exchange Right shall be exercisable immediately, during the period commencing on the date on which the General Partner provided such notice and ending on the record date to determine the stockholders eligible to receive such distribution or to vote upon the approval of such transaction (or, if no such record date is applicable, ten (10) Business Days before the consummation of such distribution or transaction). If this paragraph (h) applies, the Specified Exchange Date shall be the date on which the Partnership and the General Partner receive the Notice of Exchange, rather than the time specified above.
(i) If any Person (other than the Company) makes a bona fide tender or exchange offer for ten percent (10%) or more of the outstanding REIT Shares, then notwithstanding any other provision herein the Exchange Right shall be exercisable immediately.
Appears in 1 contract
Samples: Limited Partnership Agreement (Timberland Growth Corp)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 and 2.5 hereof8.4(d), and subject 8.4(e) and the provisions of any agreements between the Partnership and one or more holders of Common Units with respect to any limitations under applicable lawCommon Units held by them (including, the Operating Partnership hereby grants to without limitation, Annex B), each Limited Partner and each Limited Partner hereby accepts holder of Common Units shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
Amount to be paid by the Partnership, provided that such Common Units shall have been outstanding for at least one year (b) inclusive of any Partner’s holding period for any Class X Units converted into Class C Units). The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Common Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the further, that no holder of Common Units may deliver more than two (2) Notices of Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) during each calendar year. A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership 1,000 Common Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership 1,000 Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Common Units so exchanged exchanged, to receive any distributions distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date Date. The class of Common Units to be redeemed from the Exchanging Partner shall be designated on the Notice of Exchange. For the avoidance of doubt, the Exchange Right shall not apply to Class X Units, it being understood that the Class X Units must convert to Class C Units in accordance with respect the terms of Annex B prior to such Partnership Unitsexercising the Exchange Right.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Common Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Common Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Common Units. Without limiting the foregoing, if the General Partner elects to purchase such Common Units by paying the REIT Shares Amount to the Exchanging Partner, the General Partner shall purchase such Common Units (in each case, if eligible) in exchange for Class C REIT Shares. If the General Partner shall elect to exercise its right to purchase Common Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five (5) Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner shall treat any such transaction between the General Partner and the Exchanging Partner for U.S. federal income tax purposes as a sale of the Exchanging Partner’s Common Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.4(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, nine and nine-tenths percent (9.9%) or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code, (v) cause the General Partner to be treated as a “successor corporation” to Rich Uncles Real Estate Investment Trust I, an unincorporated California association, within the meaning of Section 856(g)(3) of the Code, or (vi) adversely affect the ability of the General Partner to continue to qualify as a REIT or subject the General Partner to any additional taxes under Section 857 or Section 4981 of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional one hundred eighty (180) days to the extent required for the General Partner to cause the Partnership to generate necessary cash from operations (including, without limitation, through sales of assets or the incurrence of debt) or additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use commercially reasonable efforts to cause the closing of the acquisition of exchanged Common Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall be entitled to place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary or advisable to further ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof to each of the Limited Partners.
(f) Each Limited Partner covenants and agrees with the General Partner that all Common Units delivered for exchange shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be satisfied by under any obligation to acquire Common Units which are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the Operating transfer of its Common Units to the Partnership or the CompanyGeneral Partner, as the case may be, directly to such Assignee and not to such Limited PartnerPartner shall assume and pay such transfer tax.
Appears in 1 contract
Samples: Limited Partnership Agreement (Modiv Industrial, Inc.)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d) and 2.5 hereof8.05(e), and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership; provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.05(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), the General Partner shall have no obligation to the Exchanging Partner or the CompanyPartnership with respect to the Exchanging Partner’s exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the case General Partner may bereasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.05(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or a Subsidiary Partnership’s real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Assignee Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.05(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Cole Credit Property Trust Inc)
Exchange Right. (a) A. Subject to Sections 2.22.1.B, 2.32.1.C, 2.4 2.1.D and 2.5 2.1.E hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts the right (the “"Exchange Right”"), exercisable (i) on or after the date that is one six (16) year months after the closing date of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, this Agreement to exchange on a Specified Exchange Date all or a portion of the Partnership OP Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) . The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who is exercising the Exchange Right (the “"Exchanging Partner”"); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) 2.1.B. A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership OP Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership OP Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership OP Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) . Any Assignee of a Limited Partner may exercise the rights of such Limited Partner pursuant to this Article 2Section 2.1, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) . In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as the case may be, directly to such Assignee and not to such Limited Partner.
B. Notwithstanding the provisions of Section 2.1.A, the Company may, on behalf of the Operating Partnership, in its sole and absolute discretion, elect to satisfy an Exchanging Partner's Exchange Right by exchanging REIT Stock and rights equal to the REIT Stock Amount on the Specified Exchange Date for the OP Units offered for exchange by the Exchanging Partner. In the event the Company shall elect to satisfy, on behalf of the Operating Partnership, an Exchanging Partner's Exchange Right by exchanging REIT Stock for the OP Units offered for exchange, (i) the Company hereby agrees to notify the Exchanging Partner within five (5) Business Days after the receipt by the Company of such Notice of Exchange, (ii) each Exchanging Partner hereby agrees to execute such documents and instruments as the Company may reasonably require in connection with the issuance of REIT Stock upon exercise of the Exchange Right and (iii) the Company hereby agrees to deliver stock certificates representing fully paid and nonassessable shares of REIT Stock.
C. Notwithstanding anything herein to the contrary, the Company shall not be entitled to satisfy an Exchanging Partner's Exchange Right pursuant to Section 2.1.B if the delivery of REIT Stock to such Limited Partner by the Company pursuant to Section 2.1.B (regardless of the Operating Partnership's obligations to the Limited Partner under Section 2.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Prime Hospitality Corp)
Exchange Right. (a) A. Subject to Sections 2.22.1.B, 2.32.1.C, 2.4 2.1.D, 2.1.E and 2.5 2.1.G hereof, and subject to any limitations under applicable law, the Operating Partnership CCC hereby grants to each Limited Partner Investor Member and each Limited Partner Investor Member hereby accepts the right (the “"Exchange Right”"), exercisable (i) on or with respect to the Special Common Units after the date that is one (1) year after expiration of any restrictions on the closing of right to exercise the Offering or (ii) upon Exchange Right as set forth in the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating PartnershipLock-up Agreement, to exchange on a Specified Exchange Date all or a portion of the Partnership Special Common Units acquired pursuant to the Contribution Agreement held by such Limited Partner Investor Member at an exchange price in cash equal to and in the form of the Cash Amount.
(b) . The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating PartnershipCCC, with a copy delivered to the CompanyCM Corp., by the Limited Partner Investor Member who is exercising the Exchange Right (the “"Exchanging Partner”Member"); provided, however, that the CompanyCM Corp., on behalf of the Operating PartnershipCCC, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.22.1.
(c) A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner B. An Investor Member may not exercise the Exchange Right for less than one thousand (1,000) Partnership Special Common Units unless such Limited Partner then Investor Member holds less than one thousand (1,000) Partnership Special Common Units, in which event the Limited Partner Investor Member must exercise the Exchange Right for all of the Partnership Special Common Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) Investor Member. Any Assignee of a Limited Partner an Investor Member may exercise the rights of such Limited Partner Investor Member pursuant to this Article 2Section 2.1, and such Limited Partner Investor Member shall be deemed to have assigned such rights to such Assignee insofar as it relates to the Special Common Units assigned and shall be bound by the exercise of such rights by such Assignee.
(f) . In connection with any exercise of such rights by an Assignee on behalf of a Limited Partneran Investor Member, the Assignee shall be deemed to be the Exchanging Member for purposes of this Agreement and the Cash Amount or the REIT Stock Common Share Amount, as the case may be, shall be satisfied by the Operating Partnership CCC or the CompanyCM Corp., as the case may be, directly to such Assignee and not to such Limited PartnerInvestor Member.
Appears in 1 contract
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 8.5(d) and 2.5 hereof8.5(e), and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership; provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.5(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.5(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the CompanyPartnership with respect to the Exchanging Partner’s exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the case General Partner may bereasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Declaration of Trust and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Declaration of Trust, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or a Subsidiary Partnership’s real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Assignee Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.5(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (United Development Funding IV)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d) and 2.5 8.05(e) hereof, and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “"Exchange Right”), exercisable (i") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership; provided, that such Partnership Units -------- shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “"Exchanging Partner”"); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, -------- ------- Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.05(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), the General Partner shall have no obligation to the Exchanging Partner or the CompanyPartnership with respect to the Exchanging Partner's exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the case General Partner may bereasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.05(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limitation (as defined in the Articles of Incorporation) and calculated in accordance therewith, except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being "closely held" within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner's, the Partnership's, or a Subsidiary Partnership's real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Assignee Partner to be "integrated" with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.05(c); provided, however, -------- ------- that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, -------- ------- that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "Restriction Notice") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under Section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Wells Real Estate Investment Trust Inc)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 8.5(d), and 2.5 hereof8.5(e), and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership; provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.5(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.5(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the CompanyPartnership with respect to the Exchanging Partner’s exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the case General Partner may bereasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Declaration of Trust and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Declaration of Trust, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or a Subsidiary Partnership’s real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Assignee Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.5(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are reasonably necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (United Development Funding Income Fund V)
Exchange Right. Pursuant to the right of the Company and the holders of Partnership Units to modify the exchange right applicable to the Partnership Units held by them pursuant to Section 8.05(a) of the A&R LPA, the exchange right with respect to the Partnership Units issuable upon exercise of the Warrants shall be subject to this Section 8(b) and shall not be subject to the terms of the exchange right in Section 8.05 of the A&R LPA.
(ai) Subject to Sections 2.28(b)(ii) and 8(b)(iii), 2.3each Holder, 2.4 and 2.5 hereofin its capacity as a holder of Partnership Units following the exercise of any Warrants, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, Company to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner Holder at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Company. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Company (with a copy delivered to the Company, General Partner) by the Limited Partner Holder who is exercising the Exchange Right (the “Exchanging PartnerHolder”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Company shall not be obligated to satisfy the such Exchange Right which is if the subject of such notice in accordance with Section 2.2.
(c) A Limited General Partner may exercise the Exchange Right from time elects to time with respect to part or all of purchase the Partnership Units that it owns, as selected by subject to the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner Exchange Notice pursuant to Section 8(b)(ii). A Holder may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then Holder holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An Holder. The Exchanging Partner Holder shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date, except as provided in Section 8(b)(v).
(eii) Any Assignee Notwithstanding the provisions of Section 8(b)(i), a Limited Partner may exercise Holder that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Holder and shall be treated for all purposes of the A&R LPA as the owner of such Partnership Units; provided, however, that the General Partner’s right to elect to deliver the REIT Shares Amount shall be subject to the limitations set forth in Sections 5(g)(i), 5(g)(ii), 8(b)(iii) and 8(b)(vi). If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8(b)(ii) with respect to an Exchange Notice, it shall so notify the Exchanging Holder within one (1) Business Day after the receipt by the General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Holder pursuant to this Section 8(b)(ii), the General Partner shall have no obligation to the Exchanging Holder or the Company with respect to the Exchanging Holder’s exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8(b)(ii), the Company shall have no obligation to pay any amount to the Exchanging Holder with respect to such Exchanging Holder’s exercise of such Exchange Right, and each of the Exchanging Holder and the General Partner shall treat the transaction between the General Partner and the Exchanging Holder for federal income tax purposes as a sale of the Exchanging Holder’s Partnership Units to the General Partner.
(iii) Notwithstanding the provisions of Section 8(b)(i) and Section 8(b)(ii), a Holder shall not be entitled to exercise the Exchange Right if the delivery of Common Stock to such Holder on the Specified Exchange Date by the General Partner pursuant to Section 8(b)(ii) (regardless of whether or not the General Partner would in fact exercise its rights under to Section 8(b)(ii)) would (a) result in such Holder or any other Person owning, directly or indirectly, shares of Common Stock in excess of the ownership limitations described in the Articles of Incorporation (the “Ownership Limits”) and calculated in accordance therewith, taking into account any Excepted Holder Limit of such Holder or other Person, (b) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (c) cause the acquisition of Common Stock by such Holder to be “integrated” with any other distribution of Common Stock for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8(b)(iii).
(iv) Notwithstanding anything to the contrary contained in this Agreement, a Holder shall be entitled to deliver an Exchange Notice concurrently with such Holder’s delivery of an Exercise Notice, in each case, covering the same (or in the case may beof the Exchange Notice, less) Exercise Units to be received upon the exercise of the Warrants, in which such case, the Company and the General Partner shall use reasonable best efforts to combine the procedures for exercise of the Warrants and the exchange of the Exercise Units pursuant to the Exchange Right so as to eliminate any delays between the exercise of the Warrants and the subsequent exchange of the Exercise Units pursuant to this Section 8(b), including by delivering shares of Common Stock without any legends regarding resale restrictions if such shares of Common Stock are being sold by the Exchanging Holder pursuant to an effective registration statement or an exemption from the registration requirements of the Securities Act.
(v) If on or prior to the Specified Exchange Date (i) the Company fails to deliver the Cash Amount or (ii) the General Partner elects to exercise its purchase right under Section 8(b)(ii) and thereafter fails to deliver the applicable Cash Amount or the REIT Shares Amount, as applicable, then the Company or the General Partner, respectively, shall pay the Exchanging Holder interest in an amount equal to 10.0% per annum of the Cash Amount that would have been payable upon exchange of such Partnership Units (regardless of whether such exchange was to be satisfied by delivery of the Operating Partnership applicable Cash Amount or the CompanyREIT Shares Amount) for the period beginning on the date the applicable Exchange Notice until such exchange is satisfied in full by delivery of the applicable Cash Amount or the REIT Shares Amount (together with any such accrued interest). Notwithstanding anything herein to the contrary, an Exchanging Holder shall continue to be treated as the Holder of such Partnership Units in all respects during the pendency of any period of non-payment contemplated in this Section 8(b)(v).
(vi) In the event that any Holder notifies the Company that it intends to exercise its Exchange Right and the General Partner elects to deliver the REIT Shares Amount to such Holder, then the General Partner shall use reasonable best efforts to promptly provide an Excepted Holder Limit to the Holder and one or more of its direct or indirect owners or affiliated entities (collectively, the “Holder Group”), which shall permit them to Beneficially Own (as defined in the Articles of Incorporation) and Constructively Own (as defined in the Articles of Incorporation) the REIT Shares Amount that could be issued upon the exercise of the Exchange Right with respect to all Partnership Units that have been or could be issued upon exercise of the Warrants (assuming the Exchange Right could be exercised in full) (such shares, the “Maximum Share Amount”). As a condition to granting such Excepted Holder Limit, such Holder (and/or one or more of its Affiliates, as appropriate) will provide the case General Partner with customary representations (a “Representation Letter”) reasonably acceptable to the General Partner and such Holder on behalf of the members of the Holder Group, provided that such Representation Letter and Excepted Holder Limit shall provide that the members of the Holder Group may beown up to 9.9% of any tenant of the General Partner (as determined for purposes of Section 856(d)(2)(B) of the Code) (provided that such ownership by members of the Holder Group does not otherwise cause the General Partner to receive or accrue rent from any tenant described in Section 856(d)(2)(B) of the Code in an amount that would cause the General Partner to not qualify as a REIT) and, directly so long as rent from any such tenants, in the aggregate, does not exceed one percent (1%) of the General Partner’s gross income in a taxable year, 10% or more of one or more tenants of the General Partner (as determined for purposes of Section 856(d)(2)(B) of the Code). Notwithstanding any other provision of this Agreement to the contrary, in the event that the General Partner and the Holder are unable to agree on the terms of the Excepted Holder Limit or an Excepted Holder Limit is not otherwise issued, the General Partner shall not be entitled to elect to deliver the REIT Shares Amount in exchange for such Partnership Units without the prior written consent of the Holder, unless the members of the Holder Group would not Beneficially Own or Constructively Own Common Stock in excess of the Ownership Limits in the event that all Partnership Units that have been or could be issued upon exercise of the Warrants then owned by such members were exchanged for the REIT Xxxxxx Xxxxxx. Any terms used in this Section 8(b)(vi) and Section 8(f) and not defined in this Agreement shall have the meaning given in the Articles of Incorporation.
(vii) In addition to the foregoing, each Holder shall have the right (the “Warrant Exchange Right”) to require the Company to redeem all or a portion of the Warrants held by such Holder. Such Warrant Exchange Right shall be effected as though such Warrants had been exercised for Partnership Units and, concurrently therewith, such Partnership Units were submitted for redemption pursuant to the terms of Sections 8(b)(i) through (v), which shall apply mutatis mutandis to such Assignee Warrant Exchange Right, including with respect to the procedures for delivery of an Exchange Notice in respect of such Warrants, the amount and not form of the exchange price being based on the Cash Amount for such Warrants, and the right of the General Partner to purchase directly and acquire such Limited PartnerWarrants by paying to the Exchanging Partner either the Cash Amount or the REIT Xxxxxx Xxxxxx, as elected by the General Partner (in its sole and absolute discretion, subject to Section 8(b)(ii)).
Appears in 1 contract
Samples: Securities Purchase Agreement (Plymouth Industrial REIT, Inc.)
Exchange Right. (a) Subject to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each the Limited Partner and each the Limited Partner hereby accepts the right (the “Exchange Right”), exercisable (i) on or after the date that is one (1) year after the closing issuance of the Offering Limited Partner’s Limited Partnership Interest or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf in its capacity as General Partner of the Operating Partnership, may elect, after a Notice of Exchange is delivered, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A The Limited Partner may exercise the Exchange Right in accordance with the terms of this Agreement from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership Units unless such Limited Partner then holds less than one thousand (1,000) Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An Exchanging Partner shall have no right with respect to any Partnership Units so exchanged to receive any distributions paid after the Specified Exchange Date with respect to such Partnership Units.
(e) Any Assignee of a The Limited Partner may exercise acknowledges that the rights Exchange Right is not transferable other than a Permitted Transferee in accordance with Section 2.7 herein, and, without the written consent of such Limited Partner pursuant to this Article 2, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be, shall be satisfied by the Operating Partnership or the Company, as may not be exercised by any transferee or assignee of the case may be, directly to such Assignee and not to such Limited PartnerPartnership Units other than a Permitted Transferee.
Appears in 1 contract
Samples: Exchange Rights Agreement (Independence Realty Trust, Inc)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 and 2.5 hereof8.4(d), and subject 8.4(e) and the provisions of any agreements between the Partnership and one or more holders of Common Units with respect to any limitations under applicable lawCommon Units held by them (including, the Operating Partnership hereby grants to without limitation, Exhibit C and Exhibit D), each Limited Partner and each Limited Partner hereby accepts holder of Common Units shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
Amount to be paid by the Partnership, provided that such Common Units shall have been outstanding for at least one year (b) inclusive of any Partner’s holding period for any Class M Units or Class P Units converted into Class C Units). The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Common Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the further, that no holder of Common Units may deliver more than two (2) Notices of Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) during each calendar year. A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership 1,000 Common Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership 1,000 Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Common Units so exchanged exchanged, to receive any distributions distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date Date. For the avoidance of doubt, the Exchange Right shall not apply to Class M Units or Class P Units, it being understood that the Class M Units and the Class P Units must convert to Class C Units in accordance with respect the terms of Exhibit C and Exhibit D (as applicable) prior to such Partnership Unitsexercising the Exchange Right.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Common Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Common Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Common Units. Without limiting the foregoing, if the General Partner elects to purchase such Common Units by paying the REIT Shares Amount to the Exchanging Partner, the General Partner shall purchase either (i) Limited Partnership Interests consisting of Class C Units, Class M Units or Class P Units (in each case, if eligible) which shall be exchanged for Class C REIT Shares and/or (ii) Limited Partnership Interests consisting of Class S Units which shall be exchanged for Class S REIT Shares, as applicable. The class of the shares purchased by the General Partner and exchanged by the Exchanging Partner shall be designated on the Notice of Exchange. If the General Partner shall elect to exercise its right to purchase Common Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five (5) Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Common Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.4(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, nine and nine-tenths percent (9.9%) or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code (v) cause the General Partner to be treated as a “successor corporation” to Rich Uncles Real Estate Investment Trust I, an unincorporated California association, within the meaning of Section 856(g)(3) of the Code, or (vi) adversely affect the ability of the General Partner to continue to qualify as a REIT or subject the General Partner to any additional taxes under Section 857 or Section 4981 of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional one hundred eighty (180) days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use commercially reasonable efforts to cause the closing of the acquisition of exchanged Common Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
(f) Each Limited Partner covenants and agrees with the General Partner that all Common Units delivered for exchange shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be under any obligation to acquire Common Units which are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the transfer of its Common Units to the Partnership or the General Partner, such Limited PartnerPartner shall assume and pay such transfer tax.
Appears in 1 contract
Samples: Limited Partnership Agreement (Rw Holdings NNN Reit, Inc.)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d) and 2.5 8.05(e) hereof, and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to their Partnership Interest and the Partnership Units allocable to them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of its Partnership Interest and the associated Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership; provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the Company (or its Affiliate) elects to purchase such Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.05(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless (or such other amount as is appropriate to take account of adjustments to the Conversion Factor) or, if such Limited Partner then holds less than one thousand 1,000 Partnership Units (1,000) Partnership Unitsor such other amount as is appropriate to take account of adjustments to the Conversion Factor), in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned also offered to sell that portion of its Partnership Interest and the allocable Partnership Units described in the Exchange Notice to the Company (including its Affiliates), and the Company (or its Affiliate) may, in its sole and absolute discretion, elect to purchase directly and acquire such rights specified Partnership Interest and allocable Partnership Units by paying to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beCompany (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the Company shall acquire the Partnership Interest and Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Interest and allocable Partnership Units. If the Company shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating Company of such Exchange Notice. Unless the Company (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), the Company shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of an Exchange Right. In the event the Company shall exercise its right to purchase such specified Partnership Interest and allocable Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner and the Company shall treat the transaction between the Company and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the Company, . Each Exchanging Partner agrees to execute such documents as the case Company may bereasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the Company pursuant to Section 8.05(b) (regardless of whether or not the Company would in fact exercise its rights under Section 8.05(b)) would: (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith; (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation; (iii) result in the Company being “closely held” within the meaning of Section 856(h) of the Code; (iv) cause the Company to own, directly or constructively, 10% or more of the ownership interests in a tenant of the Company’s, the Partnership’s, or a Subsidiary Partnership’s real property within the meaning of Section 856(d)(2)(B) of the Code; or (v) cause the acquisition of REIT Shares by such Assignee Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act, provided, that if such Partner delivers an opinion of counsel that is reasonably satisfactory to the Company providing that the acquisition of REIT Shares by such Partner will not be “integrated” with any other distribution of REIT Shares for purposes of complying with the Securities Act, then the General Partner may not prevent such Partner from exercising the Exchange Right by virtue of this clause (v). The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.05(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the Company to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership that states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Adaptive Real Estate Income Trust, Inc.)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 8.4(d), 8.4(e) and 2.5 hereof8.4(f), and subject to any limitations under applicable lawon or after the date which is one year after the acquisition of such units, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts Partner, other than DREIT, shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, with a copy delivered to the Company, General Partner by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if DREIT elects to purchase the Operating Partnership, may elect, after a Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand hundred (1,000100) Partnership Units unless or, if such Limited Partner then holds less than one thousand hundred (1,000100) Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned offered to sell the Partnership Units described in the Notice of Exchange to the General Partner which may, in its sole and absolute discretion, elect to purchase directly and acquire such rights Partnership Units by paying to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, Exchanging Partner either the Cash Amount or the REIT Stock DREIT Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five business days after the receipt of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall not have any obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner exercises its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of DREIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be satisfied entitled to exercise the Exchange Right if the delivery of DREIT Shares to such Partner on the Specified Exchange Date by the Operating Partnership General Partner pursuant to Section 8.4(b) (regardless of whether or not the CompanyGeneral Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, DREIT Shares in excess of the ownership Limitation (as defined in DREIT’s Declaration of Trust) and calculated in accordance therewith, except as provided in DREIT’s Declaration of Trust, (ii) result in DREIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in DREIT’s Declaration of Trust, (iii) result in DREIT being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause DREIT to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or a Subsidiary Partnership’s, real property, within the meaning of Section 856(d)(2)(D) of the Code, (v) cause the acquisition of DREIT Shares by such Partner to be “integrated” with any other distribution of DREIT Shares for purposes of complying with the registration provisions of the Securities Act of 1933, as amended (the case “Securities Act”), or (vi) cause the acquisition of the DREIT Shares to be made in violation of any of the provisions relating to exemption from registration or registration of the Securities Act. The General Partner, in its sole discretion, may bewaive the restriction on exchange set forth in this Section 8.4(c) provided, directly however, that in the event such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date provided, however, the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for DREIT to cause additional DREIT Shares to be issued to provide fmancing to be used to make such Assignee and not payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to such Limited Partneruse its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
Appears in 1 contract
Samples: Limited Partnership Agreement (Dakota Real Estate Investment Trust)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 and 2.5 hereof8.05(d), and subject 8.05(e) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to any limitations under applicable lawPartnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts Partner, other than the General Partner, shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.05(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Partnership Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), the General Partner shall not have any obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.05(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limitation (as defined in the Articles of Incorporation) and calculated in accordance therewith, except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or a Subsidiary Partnership’s, real property, within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act of 1933, as amended (the “Securities Act”). The General Partner, in their sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.05(c); provided, however, that in the event such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Wells Real Estate Investment Trust Iii Inc)
Exchange Right. (a) Subject to Sections 2.28.4(b), 2.38.4(c), 2.4 8.4(d), 8.4(e) and 2.5 hereof8.4(f) and the provisions of any agreements between the Partnership and one or more holders of Common Units with respect to Common Units held by them, and subject to any limitations under applicable law, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts holder of Common Units shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Common Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Common Units subject to the Notice of Exchange is deliveredpursuant to Section 8.4(b); and provided, to satisfy the further, that no holder of Common Units may deliver more than two Notices of Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) during each calendar year. A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less fewer than one thousand (1,000) Partnership 1,000 Common Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership 1,000 Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Common Units so exchanged exchanged, to receive any distributions distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.4(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Common Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Common Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Common Units. If the General Partner shall elect to exercise its right to purchase Common Units under this Section 8.4(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five business days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 8.4(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.4(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall be satisfied by treat the Operating Partnership or transaction between the CompanyGeneral Partner, as the case may be, directly and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Common Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.4(a) and 8.4(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.4(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.4(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.4(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Common Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under section 7704 of the Code.
(f) Notwithstanding anything else in this Agreement to the contrary, SSSHT Advisor, LLC is prohibited from exchanging or otherwise transferring the Partnership Units purchased by it on October 5, 2016 for $1,000 cash and the additional Partnership Units purchased by it on September __, 2017 for $200,000, so long as it continues acting as the Advisor pursuant to the Advisory Agreement.
(g) Each Limited Partner covenants and agrees with the General Partner that all Common Units delivered for exchange shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be under any obligation to acquire Common Units which are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the transfer of its Common Units to the Partnership or the General Partner, such Limited PartnerPartner shall assume and pay such transfer tax.
Appears in 1 contract
Samples: Limited Partnership Agreement (Strategic Student & Senior Housing Trust, Inc.)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 and 2.5 hereof8.05(d), and subject 8.05(e) and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to any limitations under applicable lawPartnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts Partner, other than the General Partner, shall have the right (the “Exchange Right”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership, provided that such Common Units shall have been outstanding for at least one year and with respect to convertible Additional Equity, including the Series A Preferred Units, such one year period shall run from the date of original issuance of such Additional Equity without regard to the date of such Additional Equity’s conversion into Common Units. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of Partnership shall not be obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a General Partner elects to purchase the Common Units subject to the Notice of Exchange is delivered, pursuant to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) 8.05(b). A Limited Partner may exercise the Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) Partnership 1,000 Common Units unless or, if such Limited Partner then holds less than one thousand (1,000) Partnership 1,000 Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Common Units so exchanged exchanged, to receive any distributions distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights offered to such Assignee and shall be bound by sell the exercise Common Units described in the Notice of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Common Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Common Units. If the General Partner shall elect to exercise its right to purchase Common Units under this Section 8.05(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five (5) business days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 8.05(b), the General Partner shall not have any obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Common Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.05(a) and 8.05(b), a Limited Partner shall not be satisfied entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the Operating Partnership General Partner pursuant to Section 8.05(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other Person owning, directly or indirectly, shares of the General Partner in excess of the Aggregate Stock or Common Stock Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in shares of the General Partner being owned by fewer than 100 Persons (determined without reference to any rules of attribution and under the definition of “Person” in the Articles of Incorporation), except as provided in the Articles of Incorporation, result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iii) cause the General Partner to own, directly or constructively, 9.8% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or any direct or indirect Subsidiary (including, without limitation, partnerships, joint ventures and limited liability companies) of the General Partner’s or the CompanyPartnership’s real property, as within the case may bemeaning of Section 856(d)(2)(B) of the Code, (iv) otherwise, directly or indirectly, cause the General Partner to fail to qualify as a REIT or (v) cause the acquisition of REIT Shares by such Assignee Partner to be “integrated” with any other distribution for REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.05(c); provided, however, that in the event such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners holding Common Units, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Columbia Property Trust Operating Partnership, L.P.)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d) and 2.5 8.05(e) hereof, and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right”), exercisable (i"EXCHANGE RIGHT") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership; provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”"EXCHANGING PARTNER"); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.05(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may be-34- General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), the General Partner shall have no obligation to the Exchanging Partner or the CompanyPartnership with respect to the Exchanging Partner's exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the case General Partner may bereasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.05(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being "closely held" within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner's, the Partnership's, or a Subsidiary Partnership's real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Assignee Partner to be "integrated" with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.05(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "RESTRICTION NOTICE") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under Section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Behringer Harvard Real Estate Investment Trust I Inc)
Exchange Right. (a) Subject to Sections 2.2the provisions of this Section 8.05 and the terms of an agreement between the Partnership or the General Partner and a Limited Partner, 2.3each Limited Partner, 2.4 and 2.5 hereofother than the HHT, and subject to any limitations under applicable lawLtd. Inc., the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts General Partner, or any wholly owned subsidiaries of the Company, shall have the right (the “"Exchange Right”), exercisable (i") on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “"Exchanging Partner”"); provided, however, that the Company, on behalf of Partnership shall not be -------- ------- obligated to satisfy such Exchange Right if the Operating Partnership, may elect, after a Company and/or the General Partner elects to purchase the Partnership Units subject to the Notice of Exchange is deliveredpursuant to Section 8.05(b); and provided, to satisfy the Exchange Right which is the subject of such notice in accordance with Section 2.2.
(c) A further, that no Limited -------- ------- Partner may exercise the deliver more than two Notices of Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Exchange Date with respect to such Partnership UnitsDate.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned offered to sell the Partnership Units described in the Notice of Exchange to the General Partner and the Company, and either of the General Partner or the Company (or both) may, in its sole and absolute discretion, elect to purchase directly and acquire such rights Partnership Units by paying to such Assignee and shall be bound by the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partner, Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner or the Company (in their sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner or the Company shall acquire the Partnership Units offered for exchange by the exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner or the Company shall elect to exercise its right to purchase Partnership Units under this Section 8.05(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five Business Days after the receipt by the Operating General Partner of such Notice of Exchange. Unless the General Partner and/or the Company (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.05(b), neither the General Partner nor the Company shall have any obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner's exercise of the Exchange Right. In the event the General Partner or the Company shall exercise its right to purchase Partnership Units with respect to the exercise of a Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner's exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner or the Company, as the case may be, directly shall treat the transaction between the General Partner or the Company, as the case may be, and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner's Partnership Units to the General Partner or the Company, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c) Notwithstanding the provisions of Section 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Assignee Partner on the Specified Exchange Date by the General Partner or the Company pursuant to Section 8.05(b) (regardless of whether or not the General Partner or the Company would in fact exercise its rights under Section 8.05(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limitation (as defined in the Articles of Incorporation) and calculated in accordance therewith, except as provided in the Declaration of Trust, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Declaration of Trust, (iii) result in the Company being "closely held" within the meaning of Section 856(h) of the Code, (iv) cause the Company to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner's, the Partnership's, or a Subsidiary Partnership's, real property, within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Partner to be "integrated" with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act of 1933, as amended (the "Securities Act"). The General Partner or the Company, in their sole discretion, may waive the restriction on exchange set forth in this Section 8.05(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, -------- however, that the Company or the General Partner may elect to cause the ------- Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the Company to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the Company and the General Partner agree to use their best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a "publicly traded partnership" under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a "Restriction Notice") to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a "publicly traded partnership" under section 7704 of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Hudson Hotels Trust)
Exchange Right. (a) Subject to Sections 2.28.5(b), 2.38.5(c), 2.4 8.5(d) and 2.5 hereof8.5(e), and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the ““ Exchange RightRight ”), exercisable (i) on or after to require the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange redeem on a Specified Exchange Date all or a portion of the Partnership Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount.
(b) Amount to be paid by the Partnership; provided, that such Partnership Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the ““ Exchanging PartnerPartner ”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.5(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Units so exchanged exchanged, to receive any distributions distribution paid after the Specified Exchange Date with respect to such Partnership UnitsUnits if the record date for such distribution is on or after the Specified Exchange Date.
(eb) Any Assignee Notwithstanding the provisions of Section 8.5(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Partnership Units described in the Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Partnership Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the case may beGeneral Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner and shall be satisfied treated for all purposes of this Agreement as the owner of such Partnership Units. If the General Partner shall elect to exercise its right to purchase Partnership Units under this Section 8.5(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the Operating General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the CompanyPartnership with respect to the Exchanging Partner’s exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the case General Partner may bereasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner’s, the Partnership’s, or a Subsidiary Partnership’s real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Assignee Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.5(c); provided, however, that in the event any such restriction is waived, the Exchanging Partner shall be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to occur as quickly as reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “ Restriction Notice ”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such Limited Partnercounsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
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Samples: Limited Partnership Agreement (Cole Credit Property Trust Iv, Inc.)
Exchange Right. (a) Subject to Sections 2.28.05(b), 2.38.05(c), 2.4 8.05(d), and 2.5 hereof8.05(e), and subject to the potential modification of any limitations under applicable lawrights or obligations provided for herein by agreement(s) between the Partnership and any one or more Limited Partners with respect to Partnership Units held by them, the Operating Partnership hereby grants to each Limited Partner and each Limited Partner hereby accepts shall have the right (the “Exchange Right,” and a Limited Partner exercising the Exchange Right, an “Exchanging Partner”), exercisable (i) to require the Partnership to redeem on or after the date that is one (1) year after the closing of the Offering or (ii) upon the liquidation of the Operating Partnership or the sale of all or substantially all of the assets of the Operating Partnership, to exchange on a applicable Specified Exchange Date all or a portion of the Partnership Common Units held by such Limited Partner (such Partnership Units, the “Tendered Units”) at an exchange a redemption price equal to to, and in the form of, the Cash Amount or the REIT Shares Amount, as elected by the Partnership (acting through the General Partner) in its sole and absolute discretion; provided, that such Partnership Common Units shall have been outstanding for at least one year; and provided, further, that if the Partnership elects to deliver the REIT Shares Amount in redemption of the Cash Amount.
Tendered Units pursuant to this Section 8.05(a), and the General Partner does not elect to purchase the Tendered Units pursuant to Section 8.05(b), the Partnership shall direct the General Partner to issue and deliver the corresponding REIT Shares Amount to the Exchanging Partner on or prior to the Specified Exchange Date, in which case, (bi) the General Partner, acting as a distinct legal entity, shall assume directly the obligation of the Partnership to deliver the REIT Shares Amount to the Exchanging Partner, and (ii) such transaction shall be treated, for federal income tax purposes, as a transfer by the Exchanging Partner of such Tendered Units to the General Partner in exchange for REIT Shares. The Exchange Right shall be exercised pursuant to a the delivery of an Exchange Notice of Exchange delivered to the Operating Partnership, Partnership (with a copy delivered to the Company, General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Company, on behalf of the Operating Partnership, may elect, after a Notice of Exchange is delivered, Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Tendered Units subject to the Exchange Right which is the subject of such notice in accordance with Notice pursuant to Section 2.2.
(c) A 8.05(b); and provided further, that no Limited Partner may exercise the deliver more than two Exchange Right from time to time with respect to part or all of the Partnership Units that it owns, as selected by the Limited Partner, provided that, except as provided in the Agreement, a Notices during each calendar year. A Limited Partner may not exercise the Exchange Right for less than one thousand (1,000) 1,000 Partnership Common Units unless or, if such Limited Partner then holds less than one thousand (1,000) 1,000 Partnership Common Units, in which event the Limited Partner must exercise the Exchange Right for all of the Partnership Common Units held by such Limited Partner.
(d) An . The Exchanging Partner shall have no right right, with respect to any Partnership Tendered Units so exchanged exchanged, to receive any distributions distribution paid with respect to such Tendered Units if the record date for such distribution is on or after the Specified Exchange Date with respect Date. In the event that the Partnership (acting through the General Partner) determines to pay the Exchanging Partner the REIT Xxxxxx Xxxxxx, and the REIT Shares Amount is not a whole number of shares, the Exchanging Partner shall be paid that number of REIT #96603748v1 Shares which equals the nearest whole number less than such amount. In case of any reclassification of the REIT Shares (including, but not limited to, any reclassification upon a consolidation or merger in which the General Partner is the continuing entity) into securities other than REIT Shares, for purposes of this Section 8.05(a), the General Partner (or its successor) may thereafter exercise its right to purchase Tendered Units for the kind and amount of shares of such securities receivable upon such reclassification by a holder of the number of REIT Shares for which such Tendered Units could be purchased pursuant to this Section 8.05(a) immediately prior to such Partnership Unitsreclassification.
(eb) Any Assignee Notwithstanding the provisions of Section 8.05(a), a Limited Partner may exercise that exercises the rights of such Limited Partner pursuant to this Article 2, and such Limited Partner Exchange Right shall be deemed to have assigned such rights also offered to such Assignee and shall be bound by sell the exercise of such rights by such Assignee.
(f) In connection with any exercise of such rights by an Assignee on behalf of a Limited Tendered Units to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Tendered Units by paying to the Exchanging Partner either the Cash Amount or the REIT Stock Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Tendered Units and shall be treated for all purposes of this Agreement as the owner of such Tendered Units. If the General Partner shall elect to exercise its right to purchase Tendered Units under this Section 8.05(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within five business days after the receipt by the General Partner of such Exchange Notice. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Tendered Units from the Exchanging Partner pursuant to this Section 8.05(b) or the Partnership shall elect to deliver the REIT Shares Amount in satisfaction of the Partnership’s obligations under Section 8.05(a), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of an Exchange Right. In the event the General Partner shall exercise its right to purchase Tendered Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.05(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall treat the transaction between the General Partner and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Tendered Units to the General Partner. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its Exchange Right. In the event that the General Partner determines to pay the Exchanging Partner the REIT Xxxxxx Xxxxxx, and the REIT Shares Amount is not a whole number of shares, the Exchanging Partner shall be paid that number of REIT Shares which equals the nearest whole number less than such amount. In case of any reclassification of the REIT Shares (including, but not limited to, any reclassification upon a consolidation or merger in which the General Partner is the continuing entity) into securities other than REIT Shares, for purposes of this Section 8.05(b), the Partnership (or its successor) may thereafter exercise its right to redeem Tendered Units for the kind and amount of shares of such securities receivable upon such reclassification by a holder of the number of REIT Shares for which such Tendered Units could be purchased pursuant to this Section 8.05(b) immediately prior to such reclassification.
(c) Notwithstanding the provisions of Sections 8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date pursuant to Section 8.05(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.05) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the ownership limitations described in the Articles of Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned by fewer #96603748v1 than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the ownership interests in a tenant of the General Partner’s or the Partnership’s real property within the meaning of Section 856(d)(2)(B) of the Code (except to the extent the General Partner determines that such ownership would be permitted pursuant to Section 856(d)(8)), (v) cause the acquisition of REIT Shares by such Partner to be “integrated” with any other distribution of REIT Shares for purposes of complying with the registration provisions of the Securities Act or (vi) would otherwise be prohibited under applicable federal or state securities laws. The General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange set forth in this Section 8.05(c).
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of Tendered Units hereunder to occur on the Specified Exchange Date or as soon thereafter as is reasonably possible.
(e) Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are reasonably necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
(f) Each Limited Partner covenants and agrees with the General Partner that all Tendered Units shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be satisfied by under any obligation to acquire Tendered Units that are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the Operating transfer of its Tendered Units to the Partnership or the CompanyGeneral Partner, as the case may be, directly to such Assignee and not to such Limited Partner shall assume and pay such transfer tax.
(g) The General Partner may, at its election and from time to time, (i) designate one or more of its controlled Affiliates to purchase all or any portion of the Tendered Units to be purchased by the General Partner pursuant to this Section 8.05 and (ii) thereafter revoke any such designation. From and after any such designation (unless and until such designation shall be revoked by the General Partner), a Limited Partner that exercises the Exchange Right shall be deemed to have also offered to sell the Tendered Units to each such designee and any such designee shall be entitled to elect to purchase directly and acquire such Tendered Units pursuant to Section 8.05(b) applied mutatis mutandis. Furthermore, notwithstanding the fact that the General Partner may have previously notified an Exchanging Partner that the General Partner will acquire the Tendered Units, any such designee may elect to purchase directly and acquire such Tendered Units pursuant to Section 8.05(b) applied mutatis mutandis. Without limiting #96603748v1 the foregoing, Talk America Services, LLC is hereby designated pursuant to this Section 8.05(g) and shall continue as such unless and until the General Partner revokes such designation.
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