Common use of Listing Exchange Right Clause in Contracts

Listing Exchange Right. (a) In the event that the Redemption Right is terminated in accordance with Section 6(a), beginning 180 days after the date that the REIT Shares (or the common stock of any Successor Entity) are listed on a National Exchange (the “Listed Shares”), each holder of the Series A Preferred Units shall have the right to require the General Partner to purchase all or a portion of such holder’s Series A Preferred Units (the “Listing Exchange Units”) in exchange for a number of Listed Shares determined by dividing (i) the number of Listing Exchange Units tendered for purchase multiplied by the Redemption Price as of the Listing Exchange Date (as defined below) by (ii) the volume-weighted average price of the Listed Shares over the 30 day period prior to the Exchange Date (the “Listing Exchange Right”). In connection with the issuance of Listed Shares pursuant to this Listing Exchange Right, the General Partner shall issue a corresponding number of additional Partnership Units, to be held by the General Partner, as set forth in Section 4.2(a)(i). A holder of Series A Preferred Units desiring to exercise its Listing Exchange Right must deliver a written notice (the “Listing Exchange Notice”) in the form approved by the Partnership, duly completed, to the Partnership by certified or express delivery mail postage prepaid to the Partnership’s principal office c/o the General Partner. The Listing Exchange Notice must state: (i) the number of Listing Exchange Units tendered for purchase by the General Partner; and (ii) that the Listing Exchange Units are to be purchased pursuant to this Section 7(a). The General Partner shall purchase the Listing Exchange Units properly tendered to the General Partner within 30 days after receipt of the Listing Exchange Notice (or, if not a business day, the next succeeding business day) (the “Listing Exchange Date”). Upon receipt of a Listing Exchange Notice, the General Partner shall provide the holder of the Listing Exchange Units subject to the Listing Exchange Notice with (i) instructions as to the tender of the Listing Exchange Units, (ii) the Listing Exchange Date; (iii) the place or places where any certificates representing such Listing Exchange Units are to be surrendered against payment of the Listed Shares; and (iv) the Redemption Price on the Listing Exchange Date. The Series A Preferred Units are not convertible or exchangeable for any other property or securities of the Partnership except as provided in this Section 7(a). (b) The Partnership, the General Partner and each holder of Series A Preferred Units that exercises its Listing Exchange Right, as the case may be, shall treat the transaction between the General Partner and such holder of Series A Preferred Units for federal income tax purposes as a sale of such holder’s Series A Preferred Units to the General Partner. Each holder of Series A Preferred Units that exercises its Listing Exchange Right agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Listing Exchange Right. (c) Notwithstanding the provisions of Section 7(a), a holder of Series A Preferred Units shall not be entitled to exercise the Listing Exchange Right if the delivery of REIT Shares to such Partner on the Listing Exchange Date by the General Partner pursuant to Section 7(a) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares 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, 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 7(c). (d) Notwithstanding any other provision of this Designation of Rights, the General Partner shall place appropriate restrictions on the ability of the holders of Series A Preferred Units to exercise their Listing 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 holder of Series A Preferred 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 the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code. (e) Each holder of Series A Preferred Units covenants and agrees with the Partnership and the General Partner that all Series A Preferred Units delivered for redemption or exchange pursuant to Sections 6 and 7 hereof 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 Series A Preferred Units which are or may be subject to any liens. Each holder of Series A Preferred Units further agrees that, if any state or local property transfer tax is payable as a result of the transfer of its Series A Preferred Units to the Partnership or the General Partner, such Limited Partner shall assume and pay such transfer tax.

Listing Exchange Right. (a) In the event that the Redemption Right is terminated in accordance with Section 6(a), beginning 180 days after the date that the REIT Shares (or the common stock of any Successor Entity) are listed on a National Exchange (the “Listed Shares”), each holder of the Series A Preferred Units shall have the right to require the General Partner to purchase all or a portion of such holder’s Series A Preferred Units (the “Listing Exchange Units”) in exchange for a number of Listed Shares determined by dividing (i) the number of Listing Exchange Units tendered for purchase multiplied by the Redemption Price as of the Listing Exchange Date (as defined below) by (ii) the volume-weighted average price of the Listed Shares over the 30 day period prior to the Exchange Date (the “Listing Exchange Right”). In connection with the issuance of Listed Shares pursuant to this Listing Exchange Right, the General Partner shall issue a corresponding number of additional Partnership Units, to be held by the General Partner, as set forth in Section 4.2(a)(i). A holder of Series A Preferred Units desiring to exercise its Listing Exchange Right must deliver a written notice (the “Listing Exchange Notice”) in the form approved by the Partnership, duly completed, to the Partnership by certified or express delivery mail postage prepaid to the Partnership’s principal office c/o the General Partner. The Listing Exchange Notice must state: (i) the number of Listing Exchange Units tendered for purchase by the General Partner; and (ii) that the Listing Exchange Units are to be purchased pursuant to this Section 7(a). The General Partner shall purchase the Listing Exchange Units properly tendered to the General Partner within 30 days after receipt of the Listing Exchange Notice (or, if not a business day, the next succeeding business day) (the “Listing Exchange Date”). Upon receipt of a Listing Exchange Notice, the General Partner shall provide the holder of the Listing Exchange Units subject to the Listing Exchange Notice with (i) instructions as to the tender of the Listing Exchange Units, (ii) the Listing Exchange Date; (iii) the place or places where any certificates representing such Listing Exchange Units are to be surrendered against payment of the Listed Shares; and (iv) the Redemption Price on the Listing Exchange Date. The Series A Preferred Units are not convertible or exchangeable for any other property or securities of the Partnership except as provided in this Section 7(a). (b) The Partnership, the General Partner and each holder of Series A Preferred Units that exercises its Listing Exchange Right, as the case may be, shall treat the transaction between the General Partner and such holder of Series A Preferred Units for federal income tax purposes as a sale of such holder’s Series A Preferred Units to the General Partner. Each holder of Series A Preferred Units that exercises its Listing Exchange Right agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Listing Exchange Right. (c) Notwithstanding the provisions of Section 7(a), a holder of Series A Preferred Units shall not be entitled to exercise the Listing Exchange Right if the delivery of REIT Shares to such Partner on the Listing Exchange Date by the General Partner pursuant to Section 7(a) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares 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, 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 EAST\180070029.1 General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 7(c). (d) Notwithstanding any other provision of this Designation of Rights, the General Partner shall place appropriate restrictions on the ability of the holders of Series A Preferred Units to exercise their Listing 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 holder of Series A Preferred 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 the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code. (e) Each holder of Series A Preferred Units covenants and agrees with the Partnership and the General Partner that all Series A Preferred Units delivered for redemption or exchange pursuant to Sections 6 and 7 hereof 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 Series A Preferred Units which are or may be subject to any liens. Each holder of Series A Preferred Units further agrees that, if any state or local property transfer tax is payable as a result of the transfer of its Series A Preferred Units to the Partnership or the General Partner, such Limited Partner shall assume and pay such transfer tax.