Common use of Limitations on Exchanges Clause in Contracts

Limitations on Exchanges. (a) The Exchange procedures described in this Article XII are intended to ensure that the Company not be treated as a “publicly traded partnership” under Section 7704 of the Code. Notwithstanding anything to the contrary herein, to the extent PubCo or the Company shall determine in good faith that the Class A Common Units or the Class P Units do not meet the requirements of Treasury Regulation section 1.7704-1(h) or that an Exchange would otherwise pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the Code, PubCo or the Company, as the case may be, shall use reasonable best efforts to identify one or more practical solutions that would eliminate or minimize such risk in a manner that minimizes adverse impact on the Exchange procedures. If PubCo or the Company determines in good faith it is necessary or advisable to impose any restrictions on a Paired Interest Exchange to prevent the Company from being treated as a “publicly traded partnership” under Section 7704 of the Code, then before imposing any such restrictions, PubCo or the Company shall first consult in good faith with each Member that is a Sponsor Member in order to attempt to ameliorate the cause of such restrictions. Notwithstanding anything to the contrary herein, no Exchange shall be permitted (and, if attempted, shall, to the fullest extent permitted by law, be void ab initio) if, in the good faith determination of PubCo or of the Company, such an Exchange would pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the Code. (b) For the avoidance of doubt, and notwithstanding anything to the contrary herein, a Member shall not be entitled to effect an Exchange to the extent PubCo or the Company reasonably determines that such Exchange (i) would be prohibited by law or regulation (including, without limitation, the unavailability of any requisite registration statement filed under the Securities Act or any exemption from the registration requirements thereunder) or (ii) would not be permitted under any other agreements with PubCo or its subsidiaries by which such Member is bound (including, without limitation, this Agreement) or any written policies of PubCo related to unlawful or inappropriate trading applicable to its directors, officers or other personnel. Upon such determination, PubCo shall notify the Member requesting the Exchange of such determination, which notice shall include an explanation in reasonable detail as to the reason that the Exchange has not been effected.

Limitations on Exchanges. (a) The Exchange procedures described in this Article XII are intended to ensure that the Company not be treated as a “publicly traded partnership” under Section 7704 of the Code. Notwithstanding anything to the contrary hereincontained in the Existing Debt, the Existing Debt shall not be exchangeable by the Creditor hereof, and the Company shall not effect any exchange of the Existing Debt or otherwise issue any shares of Common Stock pursuant hereto, to the extent PubCo (but only to the extent) that after giving effect to such exchange or other share issuance hereunder the Creditor (together with its Affiliates) would beneficially own in excess of 9.99% (the “Maximum Percentage”) of the Common Stock. To the extent the above limitation applies, the determination of whether the Existing Debt shall be exchangeable (vis-à-vis other convertible, exercisable or exchangeable securities owned by the Creditor or any of its Affiliates) and of which such securities shall be convertible, exercisable or exchangeable (as among all such securities owned by the Creditor and its Affiliates) shall, subject to such Maximum Percentage limitation, be determined on the basis of the first submission to the Company shall determine in good faith that the Class A Common Units for conversion, exercise or the Class P Units do not meet the requirements of Treasury Regulation section 1.7704-1(h) or that an Exchange would otherwise pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the Code, PubCo or the Company, exchange (as the case may be). No prior inability to exchange the Existing Debt, or to issue shares of Common Stock, pursuant to this paragraph shall use reasonable best efforts to identify one or more practical solutions that would eliminate or minimize such risk in a manner that minimizes adverse impact have any effect on the Exchange procedures. If PubCo or the Company determines in good faith it is necessary or advisable to impose any restrictions on a Paired Interest Exchange to prevent the Company from being treated as a “publicly traded partnership” under Section 7704 applicability of the Code, then before imposing provisions of this paragraph with respect to any such restrictions, PubCo or the Company shall first consult in good faith with each Member that is a Sponsor Member in order to attempt to ameliorate the cause of such restrictions. Notwithstanding anything to the contrary herein, no Exchange shall be permitted (and, if attempted, shall, to the fullest extent permitted by law, be void ab initio) if, in the good faith subsequent determination of PubCo or exchangeability. For purposes of the Companythis paragraph, such an Exchange would pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the Code. (b) For the avoidance of doubt, beneficial ownership and notwithstanding anything to the contrary herein, a Member shall not be entitled to effect an Exchange to the extent PubCo or the Company reasonably determines that such Exchange (i) would be prohibited by law or regulation all determinations and calculations (including, without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with Section 13(d) of the unavailability Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”). The provisions of this paragraph shall be implemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Maximum Percentage limitation. For any reason at any time until the Existing Debt has been exchanged, upon the written or oral request of the Creditor, the Company shall within one (1) Business Day confirm orally and in writing to the Creditor the number of shares of Common Stock then outstanding, including by virtue of any requisite registration statement filed prior conversion, exchange or exercise of convertible or exercisable securities into Common Stock, including, without limitation, pursuant to the Existing Debt or securities issued pursuant to this Exchange Agreement. In addition, under no circumstances whatsoever may the Securities Act aggregate number shares of Common Stock issued to Creditor in connection with the exchange of the Existing Debt at any time exceed 19.99% of the total number of shares of Common Stock outstanding or any exemption from of the registration requirements thereundervoting power (the “Share Cap”) unless the Company has obtained either (i) its stockholders’ approval of the issuance of more than such number of shares of Common Stock pursuant to NASDAQ Marketplace Rule 5635(d) or (ii) would not be permitted under any other agreements a waiver from The NASDAQ Stock Market of the Company’s compliance with PubCo or its subsidiaries by which such Member is bound (including, without limitation, this Agreement) or any written policies of PubCo related to unlawful or inappropriate trading applicable to its directors, officers or other personnel. Upon such determination, PubCo shall notify the Member requesting the Exchange of such determination, which notice shall include an explanation in reasonable detail as to the reason that the Exchange has not been effectedRule 5635(d).

Limitations on Exchanges. (a) The Exchange procedures described in this Article XII are intended to ensure that the Company not be treated as a “publicly traded partnership” under Section 7704 of the Code. Notwithstanding anything to the contrary hereincontained in the Existing Debt, the Existing Debt shall not be exchangeable by the Creditor hereof, and the Company shall not effect any exchange of the Existing Debt or otherwise issue any shares of Common Stock pursuant hereto, to the extent PubCo (but only to the extent) that after giving effect to such exchange or other share issuance hereunder the Creditor (together with its affiliates) would beneficially own in excess of 9.99% (the “Maximum Percentage”) of the Common Stock. To the extent the above limitation applies, the determination of whether the Existing Debt shall be exchangeable (vis-à-vis other convertible, exercisable or exchangeable securities owned by the Creditor or any of its affiliates) and of which such securities shall be convertible, exercisable or exchangeable (as among all such securities owned by the Creditor and its affiliates) shall, subject to such Maximum Percentage limitation, be determined on the basis of the first submission to the Company shall determine in good faith that the Class A Common Units for conversion, exercise or the Class P Units do not meet the requirements of Treasury Regulation section 1.7704-1(h) or that an Exchange would otherwise pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the Code, PubCo or the Company, exchange (as the case may be). No prior inability to exchange the Existing Debt, or to issue shares of Common Stock, pursuant to this paragraph shall use reasonable best efforts to identify one or more practical solutions that would eliminate or minimize such risk in a manner that minimizes adverse impact have any effect on the Exchange procedures. If PubCo or the Company determines in good faith it is necessary or advisable to impose any restrictions on a Paired Interest Exchange to prevent the Company from being treated as a “publicly traded partnership” under Section 7704 applicability of the Code, then before imposing provisions of this paragraph with respect to any such restrictions, PubCo or the Company shall first consult in good faith with each Member that is a Sponsor Member in order to attempt to ameliorate the cause of such restrictions. Notwithstanding anything to the contrary herein, no Exchange shall be permitted (and, if attempted, shall, to the fullest extent permitted by law, be void ab initio) if, in the good faith subsequent determination of PubCo or exchangeability. For purposes of the Companythis paragraph, such an Exchange would pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the Code. (b) For the avoidance of doubt, beneficial ownership and notwithstanding anything to the contrary herein, a Member shall not be entitled to effect an Exchange to the extent PubCo or the Company reasonably determines that such Exchange (i) would be prohibited by law or regulation all determinations and calculations (including, without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with Section 13(d) of the unavailability Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “1934 Act”). The provisions of this paragraph shall be implemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Maximum Percentage limitation. The limitations contained in this paragraph shall apply to a successor Creditor of the Existing Debt. The holders of Common Stock shall be third party beneficiaries of this paragraph and the Company may not waive this paragraph without the consent of holders of a majority of its Common Stock. For any reason at any time, upon the written or oral request of the Creditor, the Company shall within one (1) Business Day confirm orally and in writing to the Creditor the number of shares of Common Stock then outstanding, including by virtue of any requisite registration statement filed under the Securities Act prior conversion, exchange or any exemption from the registration requirements thereunder) exercise of convertible or (ii) would not be permitted under any other agreements with PubCo or its subsidiaries by which such Member is bound (exercisable securities into Common Stock, including, without limitation, this Agreement) or any written policies of PubCo related to unlawful or inappropriate trading applicable to its directors, officers or other personnel. Upon such determination, PubCo shall notify the Member requesting the Exchange of such determination, which notice shall include an explanation in reasonable detail as pursuant to the reason that the Existing Debt or securities issued pursuant to this Exchange has not been effectedAgreement.

Limitations on Exchanges. (a) The Exchange procedures described in this Article XII are intended to ensure that the Company not be treated as a “publicly traded partnership” under Section 7704 of the Code. Notwithstanding anything to the contrary hereincontained in the notes, certificates or other instruments of the Existing Debt, the Existing Debt shall not be exchangeable by the Creditor hereof, and the Company shall not effect any exchange of the Existing Debt or otherwise issue any shares of Common Stock pursuant hereto, to the extent PubCo (but only to the extent) that after giving effect to such exchange or other share issuance hereunder the Creditor (together with its Affiliates) would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the Common Stock. To the extent the above limitation applies, the determination of whether the Existing Debt shall be exchangeable (vis-à-vis other convertible, exercisable or exchangeable securities owned by the Creditor or any of its Affiliates) and of which such securities shall be convertible, exercisable or exchangeable (as among all such securities owned by the Creditor and its Affiliates) shall, subject to such Maximum Percentage limitation, be determined on the basis of the first submission to the Company shall determine in good faith that the Class A Common Units for conversion, exercise or the Class P Units do not meet the requirements of Treasury Regulation section 1.7704-1(h) or that an Exchange would otherwise pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the Code, PubCo or the Company, exchange (as the case may be). Any shares of the Common Stock that are not issued to the Creditor for the Creditor’s beneficial ownership of the Company to remain at or below the Maximum Percentage shall be held by the Company until the Creditor provides a written notice of demand for the issuance of such shares to the Creditor; provided, however, that such notice and such issuance shall use reasonable best efforts not take effect if the Creditor’s beneficial ownership of the Company will exceed the Maximum Percentage. No prior inability to identify one exchange the Existing Debt, or more practical solutions that would eliminate or minimize such risk in a manner that minimizes adverse impact to issue shares of Common Stock, pursuant to this paragraph shall have any effect on the Exchange procedures. If PubCo or the Company determines in good faith it is necessary or advisable to impose any restrictions on a Paired Interest Exchange to prevent the Company from being treated as a “publicly traded partnership” under Section 7704 applicability of the Code, then before imposing provisions of this paragraph with respect to any such restrictions, PubCo or the Company shall first consult in good faith with each Member that is a Sponsor Member in order to attempt to ameliorate the cause of such restrictions. Notwithstanding anything to the contrary herein, no Exchange shall be permitted (and, if attempted, shall, to the fullest extent permitted by law, be void ab initio) if, in the good faith subsequent determination of PubCo or exchangeability. For purposes of the Companythis paragraph, such an Exchange would pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the Code. (b) For the avoidance of doubt, beneficial ownership and notwithstanding anything to the contrary herein, a Member shall not be entitled to effect an Exchange to the extent PubCo or the Company reasonably determines that such Exchange (i) would be prohibited by law or regulation all determinations and calculations (including, without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with Section 13(d) of the unavailability Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”). The provisions of this paragraph shall be implemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Maximum Percentage limitation. For any reason at any time until the Existing Debt has been exchanged, upon the written or oral request of the Creditor, the Company shall within one (1) Business Day confirm orally and in writing to the Creditor the number of shares of Common Stock then outstanding, including by virtue of any requisite registration statement filed prior conversion, exchange or exercise of convertible or exercisable securities into Common Stock, including, without limitation, pursuant to the Existing Debt or securities issued pursuant to this Exchange Agreement. In addition, under no circumstances whatsoever may the Securities Act aggregate number shares of Common Stock issued to Creditor in connection with the exchange of the Existing Debt at any time exceed 19.99% of the total number of shares of Common Stock outstanding or any exemption from of the registration requirements thereundervoting power unless the Company has obtained either (i) its stockholders’ approval of the issuance of more than such number of shares of Common Stock pursuant to NASDAQ Marketplace Rule 5635(d) or (ii) would not be permitted under any other agreements a waiver from The NASDAQ Stock Market of the Company’s compliance with PubCo or its subsidiaries by which such Member is bound (including, without limitation, this Agreement) or any written policies of PubCo related to unlawful or inappropriate trading applicable to its directors, officers or other personnel. Upon such determination, PubCo shall notify the Member requesting the Exchange of such determination, which notice shall include an explanation in reasonable detail as to the reason that the Exchange has not been effectedRule 5635(d).

Limitations on Exchanges. (a) The Exchange procedures described in this Article XII are intended to ensure that the Company not be treated as a “publicly traded partnership” under Section 7704 of the Code. Notwithstanding anything to the contrary hereincontained in the Existing Debt, the Existing Debt shall not be exchangeable by the Creditor hereof, and the Company shall not effect any exchange of the Existing Debt or otherwise issue any shares of Common Stock pursuant hereto, to the extent PubCo (but only to the extent) that after giving effect to such exchange or other share issuance hereunder the Creditor (together with its Affiliates) would beneficially own in excess of 9.99% (the “Maximum Percentage”) of the Common Stock. To the extent the above limitation applies, the determination of whether the Existing Debt shall be exchangeable (vis-à-vis other convertible, exercisable or exchangeable securities owned by the Creditor or any of its Affiliates) and of which such securities shall be convertible, exercisable or exchangeable (as among all such securities owned by the Creditor and its Affiliates) shall, subject to such Maximum Percentage limitation, be determined on the basis of the first submission to the Company shall determine in good faith that the Class A Common Units for conversion, exercise or the Class P Units do not meet the requirements of Treasury Regulation section 1.7704-1(h) or that an Exchange would otherwise pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the Code, PubCo or the Company, exchange (as the case may be). No prior inability to exchange the Existing Debt, or to issue shares of Common Stock, pursuant to this paragraph shall use reasonable best efforts to identify one or more practical solutions that would eliminate or minimize such risk in a manner that minimizes adverse impact have any effect on the Exchange procedures. If PubCo or the Company determines in good faith it is necessary or advisable to impose any restrictions on a Paired Interest Exchange to prevent the Company from being treated as a “publicly traded partnership” under Section 7704 applicability of the Code, then before imposing provisions of this paragraph with respect to any such restrictions, PubCo or the Company shall first consult in good faith with each Member that is a Sponsor Member in order to attempt to ameliorate the cause of such restrictions. Notwithstanding anything to the contrary herein, no Exchange shall be permitted (and, if attempted, shall, to the fullest extent permitted by law, be void ab initio) if, in the good faith subsequent determination of PubCo or exchangeability. For purposes of the Companythis paragraph, such an Exchange would pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the Code. (b) For the avoidance of doubt, beneficial ownership and notwithstanding anything to the contrary herein, a Member shall not be entitled to effect an Exchange to the extent PubCo or the Company reasonably determines that such Exchange (i) would be prohibited by law or regulation all determinations and calculations (including, without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with Section 13(d) of the unavailability Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”). The provisions of this paragraph shall be implemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Maximum Percentage limitation. For any reason at any time until the Existing Debt has been exchanged, upon the written or oral request of the Creditor, the Company shall within one (1) Business Day confirm orally and in writing to the Creditor the number of shares of Common Stock then outstanding, including by virtue of any requisite registration statement filed prior conversion, exchange or exercise of convertible or exercisable securities into Common Stock, including, without limitation, pursuant to the Existing Debt or securities issued pursuant to this Exchange Agreement. In addition, under no circumstances whatsoever may the Securities Act aggregate number shares of Common Stock issued to Creditor in connection with the exchange of the Existing Debt at any time exceed 19.99% of the total number of shares of Common Stock outstanding or any exemption from of the registration requirements thereundervoting power unless the Company has obtained either (i) its stockholders’ approval of the issuance of more than such number of shares of Common Stock pursuant to NASDAQ Marketplace Rule 5635(d) or (ii) would not be permitted under any other agreements a waiver from The NASDAQ Stock Market of the Company’s compliance with PubCo or its subsidiaries by which such Member is bound (including, without limitation, this Agreement) or any written policies of PubCo related to unlawful or inappropriate trading applicable to its directors, officers or other personnel. Upon such determination, PubCo shall notify the Member requesting the Exchange of such determination, which notice shall include an explanation in reasonable detail as to the reason that the Exchange has not been effectedRule 5635(d).

Limitations on Exchanges. (a) The Exchange procedures described in this Article XII are intended to ensure that the Company not be treated as a “publicly traded partnership” under Section 7704 of the Code. Notwithstanding anything to the contrary hereincontained in the notes, certificates or other instruments of the Existing Debt, the Existing Debt shall not be exchangeable by the Creditor hereof, and the Company shall not effect any exchange of the Existing Debt or otherwise issue any shares of Common Stock pursuant hereto, to the extent PubCo (but only to the extent) that after giving effect to such Exchange or other share issuance hereunder the Company shall determine Creditor (together with its Affiliates) would beneficially own in good faith that excess of 9.9% (the Class A Common Units or the Class P Units do not meet the requirements of Treasury Regulation section 1.7704-1(h“Maximum Percentage”) or that an Exchange would otherwise pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the CodeCommon Stock. To the extent the above limitation applies, PubCo the determination of whether the Existing Debt shall be exchangeable (vis-à-vis other convertible, exercisable or exchangeable securities owned by the CompanyCreditor or any of its Affiliates) and of which such securities shall be convertible, exercisable or exchangeable (as among all such securities owned by the Creditor and its Affiliates) shall, subject to such Maximum Percentage limitation, be determined on the basis of the first submission by the Creditor for conversion, exercise or exchange (as the case may be). No prior inability to exchange the Existing Debt, or to issue shares of Common Stock, pursuant to this paragraph shall use reasonable best efforts to identify one or more practical solutions that would eliminate or minimize such risk in a manner that minimizes adverse impact have any effect on the Exchange procedures. If PubCo or the Company determines in good faith it is necessary or advisable to impose any restrictions on a Paired Interest Exchange to prevent the Company from being treated as a “publicly traded partnership” under Section 7704 applicability of the Code, then before imposing provisions of this paragraph with respect to any such restrictions, PubCo or the Company shall first consult in good faith with each Member that is a Sponsor Member in order to attempt to ameliorate the cause of such restrictions. Notwithstanding anything to the contrary herein, no Exchange shall be permitted (and, if attempted, shall, to the fullest extent permitted by law, be void ab initio) if, in the good faith subsequent determination of PubCo or exchangeability. For purposes of the Companythis paragraph, such an Exchange would pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the Code. (b) For the avoidance of doubt, beneficial ownership and notwithstanding anything to the contrary herein, a Member shall not be entitled to effect an Exchange to the extent PubCo or the Company reasonably determines that such Exchange (i) would be prohibited by law or regulation all determinations and calculations (including, without limitation, the unavailability with respect to calculations of any requisite registration statement filed under percentage ownership) shall be determined in accordance with Section 13(d) of the Securities Exchange Act or any exemption from of 1934, as amended, and the registration requirements thereunder) or rules and regulations promulgated thereunder (ii) would not be permitted under any other agreements with PubCo or its subsidiaries by which such Member is bound (including, without limitation, this Agreement) or any written policies the “Exchange Act”). In the event that the exchange of PubCo related to unlawful or inappropriate trading applicable to its directors, officers or other personnel. Upon such determination, PubCo shall notify the Member requesting the Exchange Amount into shares of Common Stock would result in the Creditor beneficially owning shares of Common Stock in excess of the Maximum Percentage, the Company shall issue warrants, substantially in the form attached hereto at Exhibit II, to the Creditor to purchase shares of Common Stock at a purchase price of $0.01 per share (the “Pre-Funded Warrants” and together with the shares of Common Stock underlying such Pre-Funded Warrants and the Exchange Shares, the “Exchange Securities”), with the number of such determination, which notice shall include an explanation in reasonable detail as Pre-Funded Warrants to the reason that be determined by dividing (a) the Exchange has not been effected.Amount by

Limitations on Exchanges. (a) The Exchange procedures described in this Article XII are intended to ensure that the Company not be treated as a “publicly traded partnership” under Section 7704 of the Code. Notwithstanding anything to the contrary contained herein, the aggregate number of Parent Shares issuable: (i) as part of an Exchange Package and (ii) upon exercise of a Parent Warrant issuable as part of such Exchange Package upon any exchange of a Preferred Unit by a Preferred Holder pursuant to Section 3.01 shall be limited to the extent PubCo necessary to ensure that, following such exchange, the total number of Parent Shares then beneficially owned by such Preferred Holder, its affiliates and any other Persons whose beneficial ownership of Parent Shares would be aggregated with such Preferred Holder's for purposes of Section 13(d) of the Exchange Act does not exceed 9.999% (the “Maximum Percentage”) of the total number of issued and outstanding Parent Shares (including for such purpose Parent Shares issuable as part of the Exchange Package for such exchange or issuable upon exercise of a Parent Warrant issuable as part of such Exchange Package). Each tender by a Preferred Holder of a Preferred Unit for exchange pursuant to Section 3.01 will constitute a representation by such Preferred Holder that it has evaluated the Company shall determine limitation set forth in good faith this Section 3.06(a) and determined that the Class A Common Units or the Class P Units do not meet the requirements of Treasury Regulation section 1.7704-1(h) or that an Exchange would otherwise pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 issuance of the Code, PubCo or the Company, as the case may be, shall use reasonable best efforts to identify one or more practical solutions that would eliminate or minimize Exchange Package for such risk in a manner that minimizes adverse impact on the Exchange procedures. If PubCo or the Company determines in good faith it Preferred Unit is necessary or advisable to impose any restrictions on a Paired Interest Exchange to prevent the Company from being treated as a “publicly traded partnership” permitted under this Section 7704 of the Code, then before imposing any such restrictions, PubCo or the Company shall first consult in good faith with each Member that is a Sponsor Member in order to attempt to ameliorate the cause of such restrictions. 3.06(a). (b) Notwithstanding anything to the contrary contained herein, all or a portion of a Preferred Holder’s Preferred Units shall not be subject to exchange pursuant to a Preliminary Exchange Notice and Mandatory Exchange Notice delivered pursuant to Section 3.02 if the Preferred Holder thereof delivers to Parent, no later than the tenth day after such Preliminary Exchange Notice is given, a written representation letter to the effect that it has evaluated the terms of this Section 3.06(b) and determined that the issuance of the Exchange Package for such Preferred Units would result in the total number of Parent Shares then beneficially owned by such Preferred Holder, its affiliates and any other Persons whose beneficial ownership of Parent Shares would be aggregated with such Preferred Holder's for purposes of Section 13(d) of the Exchange Act to exceed the Maximum Percentage of the total number of issued and outstanding Parent Shares (including for such purpose Parent Shares issuable as part of the Exchange Packages to Preferred Holders for such exchange or issuable upon exercise of Parent Warrants issuable as part of such Exchange Packages). For purposes of clarity, it is the intent of this Section 3.06(b) that a portion of such Preferred Holder’s Preferred Units would be subject to exchange pursuant to a Preliminary Exchange Notice and Mandatory Exchange Notice delivered pursuant to Section 3.02 if, and to the extent that, such exchange would not result in such Preferred Holder’s beneficial ownership of Parent Stock (determined as aforesaid) exceeding the Maximum Percentage. In the event that, as the result of this Section 3.06(b), one or more Preferred Holders are unable to exchange Preferred Units in connection with an exchange pursuant to Section 3.02, (i) the Company and Parent shall complete the exchange with respect to other Preferred Units in accordance with the Preliminary Exchange Notice and Mandatory Exchange Notice with respect thereto and (ii) each Preferred Unit not required to be exchanged as a result of the provisions of this Section 3.06(b) instead shall be permitted (andexchanged, if attempted, shall, without regard to the fullest extent permitted by law, be void ab initio) ifSection 3.06(a), in the good faith determination accordance with provisions of PubCo or Section 3.02(e) as of the Company, date that is one year after the Mandatory Redemption Date set forth in such an Mandatory Exchange would pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the CodeNotice. (c) By written notice to the Company and Parent, any Preferred Holder may waive the provisions of Section 3.06(a) or (b) For or may increase the avoidance of doubtMaximum Percentage to any other percentage specified in such notice, and notwithstanding anything but any such waiver or increase will not be effective until the sixty-first day after such notice is delivered to the contrary hereinCompany and Parent and will apply only to such Preferred Holder and not to any other Preferred Holder. Notwithstanding any other provision hereof, this Section 3.06 may not be amended as to a Preferred Holder without the written consent of such Preferred Holder. (d) For purposes of this Section 3.06, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. (e) For purposes of this Section 3.06, in determining the number of outstanding Parent Shares, a Member shall not be entitled to effect an Exchange to Preferred Holder may rely on the extent PubCo or the Company reasonably determines that such Exchange number of outstanding Parent Shares as reflected in (i) would be prohibited by law Parent’s most recent Form 10-Q, Form 10-K or regulation (including, without limitation, the unavailability of any requisite registration statement filed under other public filing with the Securities Act or any exemption from the registration requirements thereunder) or and Exchange Commission, (ii) would not be permitted under a more recent public announcement by Parent, or (iii) any other agreements with PubCo notice by Parent (or its subsidiaries by which such Member is bound (including, without limitation, this Agreementthe transfer agent for Parent Shares) or any written policies setting forth the number of PubCo related to unlawful or inappropriate trading applicable to its directors, officers or other personnelParent Shares outstanding. Upon such determinationthe written request of any Preferred Holder, PubCo Parent shall notify promptly, but in no even later than one trading day following the Member requesting the Exchange receipt of such determinationnotice, which notice shall include an explanation confirm in reasonable detail as writing to such Preferred Holder the reason that the Exchange has not been effectednumber of Parent Shares then outstanding.

Limitations on Exchanges. (a) The Exchange procedures described in this Article XII are intended to ensure that the Company not be treated as a “publicly traded partnership” under Section 7704 of the Code. Notwithstanding anything to the contrary hereincontained in the notes, certificates or other instruments of the Existing Debt, the Existing Debt shall not be exchangeable by the Creditor hereof, and the Company shall not effect any exchange of the Existing Debt or otherwise issue any shares of Common Stock pursuant hereto, to the extent PubCo (but only to the extent) that after giving effect to such Exchange or other share issuance hereunder the Company shall determine Creditor (together with its Affiliates) would beneficially own in good faith that excess of 9.9% (the Class A Common Units or the Class P Units do not meet the requirements of Treasury Regulation section 1.7704-1(h“Maximum Percentage”) or that an Exchange would otherwise pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the CodeCommon Stock. To the extent the above limitation applies, PubCo the determination of whether the Existing Debt shall be exchangeable (vis-à-vis other convertible, exercisable or exchangeable securities owned by the CompanyCreditor or any of its Affiliates) and of which such securities shall be convertible, exercisable or exchangeable (as among all such securities owned by the Creditor and its Affiliates) shall, subject to such Maximum Percentage limitation, be determined on the basis of the first submission by the Creditor for conversion, exercise or exchange (as the case may be). No prior inability to exchange the Existing Debt, or to issue shares of Common Stock, pursuant to this paragraph shall use reasonable best efforts to identify one or more practical solutions that would eliminate or minimize such risk in a manner that minimizes adverse impact have any effect on the Exchange procedures. If PubCo or the Company determines in good faith it is necessary or advisable to impose any restrictions on a Paired Interest Exchange to prevent the Company from being treated as a “publicly traded partnership” under Section 7704 applicability of the Code, then before imposing provisions of this paragraph with respect to any such restrictions, PubCo or the Company shall first consult in good faith with each Member that is a Sponsor Member in order to attempt to ameliorate the cause of such restrictions. Notwithstanding anything to the contrary herein, no Exchange shall be permitted (and, if attempted, shall, to the fullest extent permitted by law, be void ab initio) if, in the good faith subsequent determination of PubCo or exchangeability. For purposes of the Companythis paragraph, such an Exchange would pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the Code. (b) For the avoidance of doubt, beneficial ownership and notwithstanding anything to the contrary herein, a Member shall not be entitled to effect an Exchange to the extent PubCo or the Company reasonably determines that such Exchange (i) would be prohibited by law or regulation all determinations and calculations (including, without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with Section 13(d) of the unavailability Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”). In the event that the exchange of the Exchange Amount into shares of Common Stock would result in the Creditor beneficially owning shares of Common Stock in excess of the Maximum Percentage, the Company shall issue warrants, substantially in the form attached hereto at Exhibit II, to the Creditor to purchase shares of Common Stock at a purchase price of $0.01 per share (the “Pre-Funded Warrants” and together with the shares of Common Stock underlying such Pre-Funded Warrants and the Exchange Shares, the “Exchange Securities”), with the number of such Pre-Funded Warrants to be determined by dividing (a) the Exchange Amount by (b) the Exchange Price minus $0.01, rounded up to the nearest whole Pre-Funded Warrant in the event of a fraction. The provisions of this paragraph shall be implemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Maximum Percentage limitation. For any reason at any time until the Existing Debt has been exchanged, upon the written or oral request of the Creditor, the Company shall within one (1) Business Day confirm orally and in writing to the Creditor the number of shares of Common Stock then outstanding, including by virtue of any requisite registration statement filed prior conversion, exchange or exercise of convertible or exercisable securities into Common Stock, including, without limitation, pursuant to the Existing Debt or securities issued pursuant to this Exchange Agreement. In addition, under no circumstances whatsoever may the Securities Act aggregate number of shares of Common Stock issued to the Creditor in connection with the Exchange of the Existing Debt at any time exceed 19.9% of the total number of shares of Common Stock outstanding or any exemption from of the registration requirements thereundervoting power of the Common Stock (the “Exchange Maximum”) as of the date of this Agreement unless the Company has obtained either (i) its stockholders approval of the issuance of more than such number of shares of Common Stock pursuant to Nasdaq Marketplace Rule 5635(d) or (ii) would a waiver from The Nasdaq Stock Market of the Company’s compliance with Rule 5635(d). In addition, notwithstanding anything to the contrary contained in this Agreement, the Existing Debt shall not be permitted under exchangeable by the Creditor, and the Company shall not effect any other agreements with PubCo or its subsidiaries by which such Member is bound (includingexchange of the Existing Debt, without limitation, this Agreement) or any written policies of PubCo related to unlawful or inappropriate trading applicable to its directors, officers or other personnel. Upon such determination, PubCo shall notify the Member requesting the Exchange of such determination, which notice shall include an explanation in reasonable detail as to the reason extent that the Exchange has Price on any applicable Exchange Date is less than $0.60 per share, provided that such limitation shall not been effectedapply to any issuances of shares of Common Stock pursuant to Section 1(c)(i).

Limitations on Exchanges. (a) The Exchange procedures described in this Article XII are intended to ensure that the Company not be treated as a “publicly traded partnership” under Section 7704 of the Code. Notwithstanding anything to the contrary hereincontained in the Existing Debt, the Existing Debt shall not be exchangeable by the Creditor hereof, and the Company shall not effect any exchange of the Existing Debt or otherwise issue any shares of Common Stock pursuant hereto, to the extent PubCo (but only to the extent) that after giving effect to such exchange or other share issuance hereunder the Creditor (together with its Affiliates) would beneficially own in excess of 9.99% (the “Maximum Percentage”) of the Common Stock. To the extent the above limitation applies, the determination of whether the Existing Debt shall be exchangeable (vis-à-vis other convertible, exercisable or exchangeable securities owned by the Creditor or any of its Affiliates) and of which such securities shall be convertible, exercisable or exchangeable (as among all such securities owned by the Creditor and its Affiliates) shall, subject to such Maximum Percentage limitation, be determined on the basis of the first submission to the Company shall determine in good faith that the Class A Common Units for conversion, exercise or the Class P Units do not meet the requirements of Treasury Regulation section 1.7704-1(h) or that an Exchange would otherwise pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the Code, PubCo or the Company, exchange (as the case may be). No prior inability to exchange the Existing Debt, or to issue shares of Common Stock, pursuant to this paragraph shall use reasonable best efforts to identify one or more practical solutions that would eliminate or minimize such risk in a manner that minimizes adverse impact have any effect on the Exchange procedures. If PubCo or the Company determines in good faith it is necessary or advisable to impose any restrictions on a Paired Interest Exchange to prevent the Company from being treated as a “publicly traded partnership” under Section 7704 applicability of the Code, then before imposing provisions of this paragraph with respect to any such restrictions, PubCo or the Company shall first consult in good faith with each Member that is a Sponsor Member in order to attempt to ameliorate the cause of such restrictions. Notwithstanding anything to the contrary herein, no Exchange shall be permitted (and, if attempted, shall, to the fullest extent permitted by law, be void ab initio) if, in the good faith subsequent determination of PubCo or exchangeability. For purposes of the Companythis paragraph, such an Exchange would pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the Code. (b) For the avoidance of doubt, beneficial ownership and notwithstanding anything to the contrary herein, a Member shall not be entitled to effect an Exchange to the extent PubCo or the Company reasonably determines that such Exchange (i) would be prohibited by law or regulation all determinations and calculations (including, without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with Section 13(d) of the unavailability Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”). The provisions of this paragraph shall be implemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Maximum Percentage limitation. For any reason at any time until the Existing Debt has been exchanged, upon the written or oral request of the Creditor, the Company shall within one (1) Business Day confirm orally and in writing to the Creditor the number of shares of Common Stock then outstanding, including by virtue of any requisite registration statement filed prior conversion, exchange or exercise of convertible or exercisable securities into Common Stock, including, without limitation, pursuant to the Existing Debt or securities issued pursuant to this Exchange Agreement. In addition, under no circumstances whatsoever may the Securities Act aggregate number shares of Common Stock issued to Creditor in connection with the exchange of the Existing Debt at any time exceed 19.99% of the total number of shares of Common Stock outstanding or any exemption from of the registration requirements thereundervoting power unless the Company has obtained either (i) its stockholders’' approval of the issuance of more than such number of shares of Common Stock pursuant to NASDAQ Marketplace Rule 5635(d) or (ii) would not be permitted under any other agreements a waiver from The NASDAQ Stock Market of the Company’s compliance with PubCo or its subsidiaries by which such Member is bound (including, without limitation, this Agreement) or any written policies of PubCo related to unlawful or inappropriate trading applicable to its directors, officers or other personnel. Upon such determination, PubCo shall notify the Member requesting the Exchange of such determination, which notice shall include an explanation in reasonable detail as to the reason that the Exchange has not been effectedRule 5635(d).

Limitations on Exchanges. (a) The Exchange procedures described in this Article XII are intended to ensure that the Company not be treated as a “publicly traded partnership” under Section 7704 of the Code. Notwithstanding anything to the contrary hereincontained in the notes, certificates or other instruments of the Existing Debt, the Existing Debt shall not be exchangeable by the Creditor hereof into Common Stock of the Company, and the Company shall not effect any exchange of the Existing Debt into the Common Stock of the Company or otherwise issue any shares of Common Stock pursuant hereto, to the extent PubCo (but only to the extent) that after giving effect to such Exchange or other share issuance hereunder the Company shall determine Creditor (together with its Affiliates) would beneficially own in good faith that excess of 4.99% (the Class A Common Units or the Class P Units do not meet the requirements of Treasury Regulation section 1.7704-1(h“Maximum Percentage”) or that an Exchange would otherwise pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the CodeCommon Stock. To the extent the above limitation applies, PubCo the determination of whether the Existing Debt shall be exchangeable (vis-à-vis other convertible, exercisable or exchangeable securities owned by the CompanyCreditor or any of its Affiliates) and of which such securities shall be convertible, exercisable or exchangeable (as among all such securities owned by the Creditor and its Affiliates) shall, subject to such Maximum Percentage limitation, be determined on the basis of the first submission for exercise or exchange (as the case may be). No prior inability to exchange the Existing Debt, or to issue shares of Common Stock, pursuant to this paragraph shall use reasonable best efforts to identify one or more practical solutions that would eliminate or minimize such risk in a manner that minimizes adverse impact have any effect on the Exchange procedures. If PubCo or the Company determines in good faith it is necessary or advisable to impose any restrictions on a Paired Interest Exchange to prevent the Company from being treated as a “publicly traded partnership” under Section 7704 applicability of the Code, then before imposing provisions of this paragraph with respect to any such restrictions, PubCo or the Company shall first consult in good faith with each Member that is a Sponsor Member in order to attempt to ameliorate the cause of such restrictions. Notwithstanding anything to the contrary herein, no Exchange shall be permitted (and, if attempted, shall, to the fullest extent permitted by law, be void ab initio) if, in the good faith subsequent determination of PubCo or exchangeability. For purposes of the Companythis paragraph, such an Exchange would pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the Code. (b) For the avoidance of doubt, beneficial ownership and notwithstanding anything to the contrary herein, a Member shall not be entitled to effect an Exchange to the extent PubCo or the Company reasonably determines that such Exchange (i) would be prohibited by law or regulation all determinations and calculations (including, without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with Section 13(d) of the unavailability Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”). In the event that an exchange of the Exchange Amount into shares of Common Stock, in the case of the Initial Exchange and/or the Second Exchange, would result in the Creditor beneficially owning shares of Common Stock in excess of the Maximum Percentage, the Company shall issue warrants, substantially in the form attached hereto at Exhibit II, to the Creditor to purchase shares of Common Stock at a purchase price of $0.01 per share (the “Pre-Funded Warrants” and together with the shares of Common Stock underlying such Pre-Funded Warrants and the Exchange Shares, the “Exchange Securities”), with the number of such Pre-Funded Warrants to be determined by dividing (a) the Exchange Amount by (b) the Exchange Price minus $0.01, rounded up to the nearest whole Pre-Funded Warrant in the event of a fraction. The provisions of this paragraph shall be implemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Maximum Percentage limitation. For any reason at any time until the Existing Debt has been exchanged, upon the written or oral request of the Creditor, the Company shall within one (1) Business Day confirm orally and in writing to the Creditor the number of shares of Common Stock then outstanding, including by virtue of any requisite registration statement filed prior conversion, exchange or exercise of convertible or exercisable securities into Common Stock, including, without limitation, pursuant to the Existing Debt or securities issued pursuant to this Exchange Agreement. In addition, under no circumstances whatsoever may the Securities Act aggregate number of shares of Common Stock issued to the Creditor in connection with the Exchange of the Existing Debt at any time exceed 19.9% of the total number of shares of Common Stock outstanding or any exemption from of the registration requirements thereundervoting power of the Common Stock (the “Exchange Maximum”) as of the date of this Agreement unless the Company has obtained either (i) its stockholders approval of the issuance of more than such number of shares of Common Stock pursuant to Nasdaq Marketplace Rule 5635(d) or (ii) would not be permitted under any other agreements a waiver from The Nasdaq Stock Market of the Company’s compliance with PubCo or its subsidiaries by which such Member is bound (including, without limitation, this Agreement) or any written policies of PubCo related to unlawful or inappropriate trading applicable to its directors, officers or other personnel. Upon such determination, PubCo shall notify the Member requesting the Exchange of such determination, which notice shall include an explanation in reasonable detail as to the reason that the Exchange has not been effectedRule 5635(d).

Limitations on Exchanges. (a) The Exchange procedures described in this Article XII are intended to ensure that the Company not be treated as a “publicly traded partnership” under Section 7704 of the Code. Notwithstanding anything to the contrary hereincontained in the notes, certificates or other instruments of the Existing Debt, and subject to the provisions of this Section 1(e), the Existing Debt shall not be exchangeable by the Creditor hereof into Common Stock, and the Company shall not effect any exchange of the Existing Debt into Common Stock or otherwise issue any shares of Common Stock pursuant hereto, to the extent PubCo (but only to the extent) that after giving effect to such Exchange or other share issuance hereunder the Company shall determine Creditor (together with its Affiliates) would beneficially own in good faith that excess of 4.99% (the Class A Common Units or the Class P Units do not meet the requirements of Treasury Regulation section 1.7704-1(h“Maximum Percentage”) or that an Exchange would otherwise pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the CodeCommon Stock. To the extent the above limitation applies, PubCo the determination of whether the Existing Debt shall be exchangeable (vis-à-vis other convertible, exercisable or exchangeable securities owned by the CompanyCreditor or any of its Affiliates) and of which such securities shall be convertible, exercisable or exchangeable (as among all such securities owned by the Creditor and its Affiliates) shall, subject to such Maximum Percentage limitation, be determined on the basis of the first submission for exercise or exchange (as the case may be). Under no circumstances can the Maximum Percentage limitation be amended on less than 61 days’ notice, if, as a result of such amendment, the Maximum Percentage is amended to be above 9.9%. No prior inability to exchange the Existing Debt, or to issue shares of Common Stock, pursuant to this paragraph shall use reasonable best efforts to identify one or more practical solutions that would eliminate or minimize such risk in a manner that minimizes adverse impact have any effect on the Exchange procedures. If PubCo or the Company determines in good faith it is necessary or advisable to impose any restrictions on a Paired Interest Exchange to prevent the Company from being treated as a “publicly traded partnership” under Section 7704 applicability of the Code, then before imposing provisions of this paragraph with respect to any such restrictions, PubCo or the Company shall first consult in good faith with each Member that is a Sponsor Member in order to attempt to ameliorate the cause of such restrictions. Notwithstanding anything to the contrary herein, no Exchange shall be permitted (and, if attempted, shall, to the fullest extent permitted by law, be void ab initio) if, in the good faith subsequent determination of PubCo or exchangeability. For purposes of the Companythis paragraph, such an Exchange would pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the Code. (b) For the avoidance of doubt, beneficial ownership and notwithstanding anything to the contrary herein, a Member shall not be entitled to effect an Exchange to the extent PubCo or the Company reasonably determines that such Exchange (i) would be prohibited by law or regulation all determinations and calculations (including, without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with Section 13(d) of the unavailability Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”). The provisions of this paragraph shall be implemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Maximum Percentage limitation. For any reason at any time until the Existing Debt has been exchanged, upon the written or oral request of the Creditor, the Company shall within one (1) Business Day confirm orally and in writing to the Creditor the number of shares of Common Stock then outstanding, including by virtue of any requisite registration statement filed under the Securities Act prior conversion, exchange or any exemption from the registration requirements thereunder) exercise of convertible or (ii) would not be permitted under any other agreements with PubCo or its subsidiaries by which such Member is bound (exercisable securities into Common Stock, including, without limitation, pursuant to the Existing Debt or securities issued pursuant to this Exchange Agreement) or any written policies . In addition, under no circumstances whatsoever may the aggregate number of PubCo related shares of Common Stock issued to unlawful or inappropriate trading applicable to its directors, officers or other personnel. Upon such determination, PubCo shall notify the Member requesting Creditor in connection with the Exchange of such determination, which notice shall include an explanation in reasonable detail the Existing Debt or Purchase Warrants (as to defined below) at any time exceed 19.9% of the reason that total number of shares of Common Stock outstanding or of the voting power of the Common Stock (the “Exchange Maximum”) as of the date of this Agreement unless the Company has not been effectedobtained Shareholder Approval and thereafter the approval from the Principal Market (“Exchange Approval”).

Limitations on Exchanges. (a) The Exchange procedures described in this Article XII are intended to ensure that the Company not be treated as a “publicly traded partnership” under Section 7704 of the Code. Notwithstanding anything to the contrary hereincontained in the Existing Debt, the Existing Debt shall not be exchangeable by the Creditor hereof, and the Company shall not effect any exchange of the Existing Debt or otherwise issue any shares of Common Stock pursuant hereto, to the extent PubCo (but only to the extent) that after giving effect to such exchange or other share issuance hereunder the Creditor (together with its affiliates) would beneficially own in excess of 9.99% (the “Maximum Percentage”) of the Common Stock. To the extent the above limitation applies, the determination of whether the Existing Debt shall be exchangeable (vis-à-vis other convertible, exercisable or exchangeable securities owned by the Creditor or any of its affiliates) and of which such securities shall be convertible, exercisable or exchangeable (as among all such securities owned by the Creditor and its affiliates) shall, subject to such Maximum Percentage limitation, be determined on the basis of the first submission to the Company shall determine in good faith that the Class A Common Units for conversion, exercise or the Class P Units do not meet the requirements of Treasury Regulation section 1.7704-1(h) or that an Exchange would otherwise pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the Code, PubCo or the Company, exchange (as the case may be). No prior inability to exchange the Existing Debt, or to issue shares of Common Stock, pursuant to this paragraph shall use reasonable best efforts to identify one or more practical solutions that would eliminate or minimize such risk in a manner that minimizes adverse impact have any effect on the Exchange procedures. If PubCo or the Company determines in good faith it is necessary or advisable to impose any restrictions on a Paired Interest Exchange to prevent the Company from being treated as a “publicly traded partnership” under Section 7704 applicability of the Code, then before imposing provisions of this paragraph with respect to any such restrictions, PubCo or the Company shall first consult in good faith with each Member that is a Sponsor Member in order to attempt to ameliorate the cause of such restrictions. Notwithstanding anything to the contrary herein, no Exchange shall be permitted (and, if attempted, shall, to the fullest extent permitted by law, be void ab initio) if, in the good faith subsequent determination of PubCo or exchangeability. For purposes of the Companythis paragraph, such an Exchange would pose a material risk that the Company would be treated as a “publicly traded partnership” under Section 7704 of the Code. (b) For the avoidance of doubt, beneficial ownership and notwithstanding anything to the contrary herein, a Member shall not be entitled to effect an Exchange to the extent PubCo or the Company reasonably determines that such Exchange (i) would be prohibited by law or regulation all determinations and calculations (including, without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with Section 13(d) of the unavailability Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”). The provisions of this paragraph shall be implemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Maximum Percentage limitation. The limitations contained in this paragraph shall apply to a successor Creditor of the Existing Debt. The holders of Common Stock shall be third party beneficiaries of this paragraph and the Company may not waive this paragraph without the consent of holders of a majority of its Common Stock. For any reason at any time, upon the written or oral request of the Creditor, the Company shall within one (1) Business Day confirm orally and in writing to the Creditor the number of shares of Common Stock then outstanding, including by virtue of any requisite registration statement filed under the Securities Act prior conversion, exchange or any exemption from the registration requirements thereunder) exercise of convertible or (ii) would not be permitted under any other agreements with PubCo or its subsidiaries by which such Member is bound (exercisable securities into Common Stock, including, without limitation, this Agreement) or any written policies of PubCo related to unlawful or inappropriate trading applicable to its directors, officers or other personnel. Upon such determination, PubCo shall notify the Member requesting the Exchange of such determination, which notice shall include an explanation in reasonable detail as pursuant to the reason that the Existing Debt or securities issued pursuant to this Exchange has not been effectedAgreement.