Common use of LP Units Clause in Contracts

LP Units. 3.3.1. The Total LP Unit Amount shall be paid by the UPREIT’s delivery of 505,620 Common Units in the UPREIT pursuant to the UPREIT Agreement, which is incorporated by reference herein (collectively, the “LP Units”). The Total LP Unit Amount and the allocation thereof are set forth in the LP Unit Schedule (as defined below). The LP Units issued to Contributor shall be redeemable for shares of common stock of the REIT (“Stock”) or cash (or a combination thereof) in accordance with the redemption procedures described in the UPREIT Agreement. 3.3.2. At Closing, all LP Units shall be issued, delivered and distributed to Contributor unless at or prior to Closing, Contributor directs the UPREIT to issue, deliver and distribute any or all of the LP Units to those LP Unit recipients set forth on Exhibit D attached hereto (together with Contributor, the “LP Unit Recipients”), in which event the UPREIT shall follow the Contributor’s direction with respect to the issuance, delivery and distribution of LP Units. Each LP Unit Recipient shall receive, with respect to the Property, as reflected on Exhibit D, that number of LP Units (subject to appropriate rounding to eliminate fractional LP Units) as shall be set forth on Exhibit D; provided, however, that in the event the Closing Statement sets forth and contains information with respect to the breakdown of the Total LP Unit Amount among LP Unit Recipients that differs from that reflected on Exhibit D, the Closing Statement shall be controlling in all such respects. The number of LP Units issued to each LP Unit Recipient with respect to the Property shall equal the product of (A) the Total LP Unit Amount, multiplied by (B) the “Ownership Percentage in Subject Property” (expressed as a fraction) of each LP Unit Recipient as reflected on Exhibit D. The number of LP Units issued to each LP Unit Recipient shall be allocated as Convertible Common Units on the same percentage basis described in the first sentence of Section 3.3.1 above. 3.3.3. For purposes of determining the number of LP Units to be delivered in satisfaction of payment of the Total LP Unit Amount, the Convertible Common Units shall have a per unit value of $2.25 (each, a “Unit Price”). The LP Unit Schedule shall reflect the Unit Price. 3.3.4. Contributor shall deliver to Acquiror, no later than ten (10) days prior to Closing, and shall cause its partners, shareholders, members or other equity interest holders, as the case may be (“Interest Holders”), and any other LP Unit Recipient to also deliver to Acquiror, or to any other party designated by Acquiror, no later than ten (10) days prior to Closing, a completed questionnaire and representation letter (in substantially the form set forth in Exhibit D attached hereto, the “Investor Materials”) providing, among other things, information concerning Contributor’s, each Interest Holder’s and each LP Unit Recipient’s status as an accredited investor (“Accredited Investor”), as such term is defined in Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”), and shall provide or cause to be provided to Acquiror, or to any other party designated by Acquiror, such other information and documentation as may reasonably be requested by Acquiror in furtherance of the issuance of the LP Units as contemplated hereby. Notwithstanding anything contained in this Agreement to the contrary, in the event that, in the reasonable opinion of Acquiror, based on advice of its securities counsel, (i) any such person or entity providing Investor Materials is not considered an Accredited Investor, (ii) the proposed issuance of LP Units hereunder might not qualify for the exemption from the registration requirements of Section 5 of the Securities Act, or (iii) the proposed issuance of LP Units hereunder would violate any applicable federal or state securities laws, rules or regulations, or agreements to which the REIT or the UPREIT is subject, or any tax related or other legal rules, agreements or constraints applicable to Acquiror, the REIT or the UPREIT, Acquiror shall so advise Contributor, in writing (the “Regulatory Violation Notice”). In the event a Regulatory Violation Notice is delivered for the reason set forth in clause (i) above, the interest of each and every person or other entity with respect to which Acquiror delivers a Regulatory Violation Notice shall be redeemed by the appropriate Contributor, at no cost to any or all of Acquiror, the REIT and the UPREIT, at least two business days prior to the Closing Date. In the event of any such redemption, the Closing Statement shall reflect the updated list of LP Unit Recipients and the revised ownership percentages in the appropriate LP Unit Recipients and the Property resulting from such redemption. Subject to the terms of the Master Agreement, in the event a Regulatory Violation Notice is delivered for another reason, this Agreement shall terminate, and no party shall have any further liability hereunder except (a) as otherwise expressly set forth in this Agreement and (b) to the extent a breach of this Agreement gives rise to, or becomes the basis for, the Regulatory Violation Notice. 3.3.5. Contributor hereby covenants and agrees that it shall deliver or shall cause each of its partners, shareholders, members and any other LP Unit Recipient to deliver to Acquiror, or to any other party designated by Acquiror, any documentation that may be required under the UPREIT Agreement or any charter document of the REIT, and such other information and documentation as may reasonably be requested by Acquiror, at such time as any LP Units are redeemed for shares of Stock (“Conversion Shares”). The preceding covenant shall survive the Closing and shall not merge into any of the conveyancing documents delivered at Closing. 3.3.6. The parties acknowledge that, except to the extent that any portion of the Total LP Unit Amount consists of cash, Contributor intends for the transfer of the Property in exchange for LP Units (the “Exchange”) to result in non-recognition of gain or loss for federal income tax purposes pursuant to Section 721 of the Internal Revenue Code of 1986, as amended (the “Code”) (such treatment, the “Intended Tax Treatment”). Acquiror, the UPREIT and the REIT shall cooperate in all reasonable respects with Contributor to facilitate such Intended Tax Treatment; provided, however, that: (i) The Closing shall not be extended or delayed by reason of such Intended Tax Treatment, unless Acquiror has breached its obligations to Contributor under this Agreement; (ii) None of Acquiror, the UPREIT nor the REIT shall be required to incur any additional extraordinary (as opposed to a normal, customary and recurring) cost or expense as a result of such Intended Tax Treatment, other than the cost of Acquiror’s counsel in connection with the preparation of this Agreement. Notwithstanding anything to the contrary in the foregoing sentence, the UPREIT and the REIT shall be responsible for costs associated with any Internal Revenue Service audit made directly of either or both of the UPREIT and the REIT relating to their respective operations (as opposed to an audit that is ancillary to an audit made of any or all of the entities comprising the Contributor). In the event of the occurrence of an audit made directly of any or all of the entities comprising the Contributor, and relating to the Contributor’s operations, the Contributor shall be responsible for all costs associated therewith. Contributor hereby covenants and agrees that it shall, promptly on demand, reimburse Acquiror, the UPREIT or the REIT for any additional extraordinary cost or expense (as opposed to a normal, customary and recurring cost or expense, such as the analysis or computation related to the manner in which depreciation and built-in gain are allocated amongst the LP Unit Recipients), including, but not limited to, reasonable attorneys’ fees, actually incurred by any or all of Acquiror, the UPREIT and the REIT as a result of structuring the Exchange in order to achieve the Intended Tax Treatment, or which additional extraordinary cost or expense is or may be otherwise directly attributable thereto; and (iii) Subject to the UPREIT’s and the REIT’s performance and fulfillment in all material respects of the express covenants and conditions contained in this Agreement, none of Acquiror, the UPREIT or the REIT warrant, nor shall any of them be responsible for, the federal, state or local tax consequences to any or all of Contributor, any or all of the Interest Holders and any or all of the LP Unit Recipients resulting from either (i) the transactions contemplated by this Agreement or (ii) the allocation, if any, of losses and liabilities of the UPREIT to and among the Contributor or any of the Interest Holders in Contributor under the UPREIT Agreement, the Code or Treasury Regulations promulgated under the Code. The provisions of this Section 3.3.6 shall survive the Closing and shall not merge into any conveyancing documents delivered at Closing.

LP Units. 3.3.1. The Total LP Unit Amount shall be paid by the UPREIT’s delivery of 505,620 Common Units in the UPREIT pursuant having a value equal to twenty five percent (25%) of, and Convertible Preferred Units in the UPREIT Agreementhaving a value equal to seventy five percent (75%) of, which is incorporated by reference herein the Total LP Unit Amount (collectively, the “LP Units”). The Total LP Unit Amount and the allocation thereof are shall be set forth in the LP Unit Schedule (as defined below). The LP Units issued to Contributor shall be redeemable for shares of common stock of the REIT (“Stock”) or cash (or a combination thereof) in accordance with the redemption procedures described in the UPREIT Agreement. Contributor acknowledges that the LP Units are not certificated and that, therefore, the issuance of the LP Units shall be evidenced by the execution and delivery of an amendment to the UPREIT Agreement, which amendment shall be executed and delivered by the REIT at Closing (the “Amendment”). 3.3.2. At Closing, all LP Units shall be issued, delivered and distributed to Contributor unless at or prior to Closing, Contributor directs the UPREIT to issue, deliver and distribute any or all of the LP Units to those LP Unit recipients set forth on Exhibit D attached hereto (together with Contributor, the “LP Unit Recipients”), in which event the UPREIT shall follow the Contributor’s direction with respect to the issuance, delivery and distribution of LP Units. Each LP Unit Recipient shall receive, with respect to the PropertyProject, as reflected on Exhibit D, that number of LP Units (subject to appropriate rounding to eliminate fractional LP Units) as shall be set forth on Exhibit D; provided, however, that in the event the Closing Statement sets forth and contains information with respect to the breakdown of the Total LP Unit Amount among LP Unit Recipients that differs from that reflected on Exhibit D, the Closing Statement shall be controlling in all such respects. The number of LP Units issued to each LP Unit Recipient with respect to the Property Project shall equal the product of (A) the Total LP Unit Amount, multiplied by (B) the “Ownership Percentage in Subject PropertyProject” (expressed as a fraction) of each LP Unit Recipient as reflected on Exhibit D. The number of LP Units issued to each LP Unit Recipient shall be allocated as between Common Units and Convertible Common Preferred Units on the same percentage basis described in the first sentence of Section 3.3.1 above. 3.3.3. For purposes of determining the number of LP Units to be delivered in satisfaction of payment of the Total LP Unit Amount, the Common Units shall have a per unit value equal to the Adjusted Per Share Value, and the Convertible Common Preferred Units shall have a per unit value of $2.25 25.00 (each, a “Unit Price”). The LP Unit Schedule shall reflect the Unit Price. 3.3.4. Contributor shall deliver to Acquiror, no later than ten (10) days prior to Closing, and shall cause its partners, shareholders, members or other equity interest holders, as the case may be (“Interest Holders”), and any other LP Unit Recipient to also deliver to Acquiror, or to any other party designated by Acquiror, no later than ten (10) days prior to Closing, a completed questionnaire and representation letter (in substantially the form set forth in Exhibit D E attached hereto, the “Investor Materials”) providing, among other things, information concerning Contributor’s, each Interest Holder’s and each LP Unit Recipient’s status as an accredited investor (“Accredited Investor”), as such term is defined in Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”), and shall provide or cause to be provided to Acquiror, or to any other party designated by Acquiror, such other information and documentation as may reasonably be requested by Acquiror in furtherance of the issuance of the LP Units as contemplated hereby. Notwithstanding anything contained in this Agreement to the contrary, in the event that, in the reasonable opinion of Acquiror, based on advice of its securities counsel, (i) any such person or entity providing Investor Materials is not considered an Accredited Investor, (ii) the proposed issuance of LP Units hereunder might not qualify for the exemption from the registration requirements of Section 5 of the Securities Act, or (iii) the proposed issuance of LP Units hereunder would violate any applicable federal or state securities laws, rules or regulations, or agreements to which the REIT or the UPREIT is subject, or any tax related or other legal rules, agreements or constraints applicable to Acquiror, the REIT or the UPREIT, Acquiror shall so advise Contributor, in writing (the “Regulatory Violation Notice”). In the event a Regulatory Violation Notice is delivered for the reason set forth in clause (i) above, the interest of each and every person or other entity with respect to which Acquiror delivers a Regulatory Violation Notice shall be redeemed by the appropriate Contributor, at no cost to any or all of Acquiror, the REIT and the UPREIT, at least two business days prior to the Closing Date. In the event of any such redemption, the Closing Statement shall reflect the updated list of LP Unit Recipients and the revised ownership percentages in the appropriate LP Unit Recipients and the Property Project resulting from such redemption. Subject to the terms of the Master Agreement, in the event a Regulatory Violation Notice is delivered for another reason, this Agreement shall terminate, and no party shall have any further liability hereunder except (a) as otherwise expressly set forth in this Agreement and (b) to the extent a breach of this Agreement gives rise to, or becomes the basis for, the Regulatory Violation Notice. 3.3.5. Contributor hereby covenants and agrees that it shall deliver or shall cause each of its partners, shareholders, members and any other LP Unit Recipient to deliver to Acquiror, or to any other party designated by Acquiror, any documentation that may be required under the UPREIT Agreement or any charter document of the REIT, and such other information and documentation as may reasonably be requested by Acquiror, at such time as any LP Units are redeemed for shares of Stock (“Conversion Shares”). The preceding covenant shall survive the Closing and shall not merge into any of the conveyancing documents delivered at Closing. 3.3.6. The parties acknowledge that, except to the extent that any portion of the Total LP Unit Amount consists of cash, Contributor intends for the transfer of the Property Project in exchange for LP Units (the “Exchange”) to result in non-recognition of gain or loss for federal income tax purposes pursuant to Section 721 of the Internal Revenue Code of 1986, as amended (the “Code”) (such treatment, the “Intended Tax Treatment”). Acquiror, the UPREIT and the REIT shall cooperate in all reasonable respects with Contributor to facilitate such Intended Tax Treatment; provided, however, that: (i) The Closing shall not be extended or delayed by reason of such Intended Tax Treatment, unless Acquiror has breached its obligations to Contributor under this Agreement; (ii) None of Acquiror, the UPREIT nor the REIT shall be required to incur any additional extraordinary (as opposed to a normal, customary and recurring) cost or expense as a result of such Intended Tax Treatment, other than the cost of Acquiror’s counsel in connection with the preparation of this Agreement. Notwithstanding anything to the contrary in the foregoing sentence, the UPREIT and the REIT shall be responsible for costs associated with any Internal Revenue Service audit made directly of either or both of the UPREIT and the REIT relating to their respective operations (as opposed to an audit that is ancillary to an audit made of any or all of the entities comprising the Contributor). In the event of the occurrence of an audit made directly of any or all of the entities comprising the Contributor, and relating to the Contributor’s operations, the Contributor shall be responsible for all costs associated therewith. Contributor hereby covenants and agrees that it shall, promptly on demand, reimburse Acquiror, the UPREIT or the REIT for any additional extraordinary cost or expense (as opposed to a normal, customary and recurring cost or expense, such as the analysis or computation related to the manner in which depreciation and built-in gain are allocated amongst the LP Unit Recipients), including, but not limited to, reasonable attorneys’ fees, actually incurred by any or all of Acquiror, the UPREIT and the REIT as a result of structuring the Exchange in order to achieve the Intended Tax Treatment, or which additional extraordinary cost or expense is or may be otherwise directly attributable thereto; and (iii) Subject to the UPREIT’s and the REIT’s performance and fulfillment in all material respects of the express covenants and conditions contained in this Agreement, none of Acquiror, the UPREIT or the REIT warrant, nor shall any of them be responsible for, the federal, state or local tax consequences to any or all of Contributor, any or all of the Interest Holders and any or all of the LP Unit Recipients resulting from either (i) the transactions contemplated by this Agreement or (ii) the allocation, if any, of losses and liabilities of the UPREIT to and among the Contributor or any of the Interest Holders in Contributor under the UPREIT Agreement, the Code or Treasury Regulations promulgated under the Code. The provisions of this Section 3.3.6 shall survive the Closing and shall not merge into any conveyancing documents delivered at Closing.

LP Units. 3.3.1. The Total LP Unit Amount (i) Ten percent of the Contribution Consideration shall be paid at the Closing by the UPREIT’s Acquiror's issuance and delivery of 505,620 Common Units units of limited partnership interest in Acquiror (the UPREIT pursuant to the UPREIT Agreement, which is incorporated by reference herein (collectively, the “"LP Units”"). The Total LP Unit Amount and Contributor intends to dissolve at or shortly after the allocation thereof are set forth closing contemplated under the Agreement. In connection with such dissolution, Contributor hereby agrees to assign or distribute its entire interest in the LP Unit Schedule (as defined below)Units directly to CRALP. The LP Units issued to Contributor shall be redeemable for shares of common stock of the REIT (“Stock”) or cash (or a combination thereof) in accordance with the redemption procedures described in the UPREIT Agreement. 3.3.2. At Closing, all LP Units shall be issued, delivered and distributed to Contributor unless at or prior to Closing, Contributor directs the UPREIT to issue, deliver and distribute any or all issuance of the LP Units to those LP Unit recipients set forth on Exhibit D attached hereto DKH shall be evidenced by the execution and delivery of Acquiror's agreement of limited partnership (together with Contributor, the “LP Unit Recipients”"Partnership Agreement"), which shall be executed and delivered by the REIT and DKH, in which event substantially the UPREIT shall follow the Contributor’s direction with respect form attached to the issuanceInvestor Materials (defined below), delivery and distribution of LP Units. Each LP Unit Recipient shall receive, with respect to the Property, as reflected on Exhibit D, that number of LP Units (subject to appropriate rounding to eliminate fractional LP Units) as shall be set forth on Exhibit D; provided, however, that in the event the Closing Statement sets forth and contains information with respect to the breakdown of the Total LP Unit Amount among LP Unit Recipients that differs from that reflected on Exhibit D, the Closing Statement shall be controlling in all such respects. The number of LP Units issued to each LP Unit Recipient with respect to the Property shall equal the product of (A) the Total LP Unit Amount, multiplied by (B) the “Ownership Percentage in Subject Property” (expressed as a fraction) of each LP Unit Recipient as reflected on Exhibit D. The number of LP Units issued to each LP Unit Recipient shall be allocated as Convertible Common Units on the same percentage basis described in the first sentence of Section 3.3.1 aboveat Closing. 3.3.3. For purposes of determining the (ii) The number of LP Units to be delivered issued shall be equal to the Contribution Consideration to be issued in satisfaction of payment of the Total LP Unit Amount, the Convertible Common Units shall have a per unit value of $2.25 (each, a “Unit Price”). The LP Unit Schedule shall reflect the Unit Price. 3.3.4. Contributor shall deliver to Acquiror, no later than ten (10) days prior to Closing, and shall cause its partners, shareholders, members or other equity interest holders, as the case may be (“Interest Holders”), and any other LP Unit Recipient to also deliver to Acquiror, or to any other party designated by Acquiror, no later than ten (10) days prior to Closing, a completed questionnaire and representation letter (in substantially the form set forth in Exhibit D attached hereto, the “Investor Materials”) providing, among other things, information concerning Contributor’s, each Interest Holder’s and each LP Unit Recipient’s status as an accredited investor (“Accredited Investor”), as such term is defined in Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”), and shall provide or cause to be provided to Acquiror, or to any other party designated by Acquiror, such other information and documentation as may reasonably be requested by Acquiror in furtherance of the issuance of the LP Units as contemplated hereby. Notwithstanding anything contained in this Agreement to the contrary, in the event that, in the reasonable opinion of Acquiror, based on advice of its securities counsel, (i) any such person or entity providing Investor Materials is not considered an Accredited Investor, (ii) the proposed issuance of LP Units hereunder might not qualify divided by a "Unit Price," which shall be equal to the average of the last reported sales prices of the Class A Common Stock for the exemption from 30 consecutive NYSE trading days preceding, but excluding the registration requirements of Section 5 of five trading days prior to, the Securities Act, or Closing Date. (iii) CRALP and DKH intend to treat the proposed issuance receipt of LP Units hereunder would violate any applicable federal or state securities laws, rules or regulations, or agreements to which the REIT or the UPREIT is subject, or any tax related or other legal rules, agreements or constraints applicable to Acquiror, the REIT or the UPREIT, Acquiror shall so advise Contributor, in writing (the “Regulatory Violation Notice”). In the event a Regulatory Violation Notice is delivered for the reason set forth in clause (i) above, the interest of each and every person or other entity with respect to which Acquiror delivers a Regulatory Violation Notice shall be redeemed by the appropriate Contributor, at no cost to any or all of Acquiror, the REIT and the UPREIT, at least two business days prior to the Closing Date. In the event of any such redemption, the Closing Statement shall reflect the updated list of LP Unit Recipients and the revised ownership percentages in the appropriate LP Unit Recipients and the Property resulting from such redemption. Subject to the terms of the Master Agreement, in the event a Regulatory Violation Notice is delivered for another reason, this Agreement shall terminate, and no party shall have any further liability hereunder except (a) as otherwise expressly set forth in this Agreement and (b) to the extent a breach of this Agreement gives rise to, or becomes the basis for, the Regulatory Violation Notice. 3.3.5. Contributor hereby covenants and agrees that it shall deliver or shall cause each of its partners, shareholders, members and any other LP Unit Recipient to deliver to Acquiror, or to any other party designated by Acquiror, any documentation that may be required under the UPREIT Agreement or any charter document of the REIT, and such other information and documentation as may reasonably be requested by Acquiror, at such time as any LP Units are redeemed for shares of Stock (“Conversion Shares”). The preceding covenant shall survive the Closing and shall not merge into any of the conveyancing documents delivered at Closing. 3.3.6. The parties acknowledge that, except to the extent that any portion of the Total LP Unit Amount consists of cash, Contributor intends for the transfer of the Property in exchange for LP Units the Property as a tax-deferred partnership contribution (the “Exchange”"Tax-Deferred Contribution") to result in non-recognition of gain or loss for federal income tax purposes pursuant to Section 721 of the Internal Revenue Code of 1986, as amended (the “"Code”) (such treatment, the “Intended Tax Treatment”"). Acquiror, the UPREIT The REIT and the REIT Contributor shall cooperate in all reasonable respects with Contributor CRALP and DKH to facilitate effectuate such Intended Tax TreatmentTax-Deferred Contribution; provided, however, that: (iA) The Closing shall not be extended Except as set forth in this Agreement or delayed by reason of such Intended Tax Treatmentthe Partnership Agreement, unless neither Acquiror has breached its obligations to Contributor under this Agreement; (ii) None of Acquiror, the UPREIT nor the REIT shall be required to incur any additional extraordinary (as opposed to a normal, customary and recurring) cost or expense expense, or incur any additional liability, as a result of such Intended Tax TreatmentTax-Deferred Contribution, other than the cost of Acquiror’s the REIT's counsel in connection with the preparation of this Agreement. Notwithstanding anything to the contrary in the foregoing sentence, the UPREIT Agreement and the REIT shall be responsible for costs associated with any Internal Revenue Service audit made directly of either or both of the UPREIT and the REIT relating to their respective operations (as opposed to an audit that is ancillary to an audit made of any or all of the entities comprising the Contributor). In the event of the occurrence of an audit made directly of any or all of the entities comprising the Contributor, and relating to the Contributor’s operations, the Contributor shall be responsible for all costs associated therewith. Contributor hereby covenants and agrees that it shall, promptly on demand, reimburse Acquiror, the UPREIT or the REIT for any additional extraordinary cost or expense (as opposed to a normal, customary and recurring cost or expense, such as the analysis or computation related to the manner in which depreciation and built-in gain are allocated amongst the LP Unit Recipients), including, but not limited to, reasonable attorneys’ fees, actually incurred by any or all of Acquiror, the UPREIT and the REIT as a result of structuring the Exchange in order to achieve the Intended Tax Treatment, or which additional extraordinary cost or expense is or may be otherwise directly attributable theretoPartnership Agreement; and (iiiB) Subject to the UPREIT’s and the REIT’s 's performance and fulfillment in all material respects of the express covenants and conditions contained in the Partnership Agreement and this Agreement, none of Acquirorneither Contributor, the UPREIT or Acquiror nor the REIT warrantwarrants, nor shall any of them be responsible for, the federal, state or local tax consequences to any CRALP or all DKH of Contributor, any or all of the Interest Holders and any or all of the LP Unit Recipients resulting from either (i) the transactions contemplated by this Agreement or (ii) the allocation, if any, of losses and liabilities of the UPREIT to and among the Contributor or any of the Interest Holders in Contributor under the UPREIT Agreement, the Code or Treasury Regulations promulgated under the Code. The provisions of this Section 3.3.6 shall survive the Closing and shall not merge into any conveyancing documents delivered at Closing.

LP Units. 3.3.1. (i) The Total LP Unit Amount shall be paid by the UPREIT’s 's delivery of 505,620 Common Partnership Units (as that term is defined in the Partnership Agreement, as defined below) in the UPREIT pursuant to (the UPREIT Agreement, which is incorporated by reference herein (collectively, the “"LP Units”UNITS"). The Total LP Unit Amount and the allocation thereof are shall be set forth in the LP Unit Schedule (as defined below). The LP Units issued to Contributor shall be redeemable for shares of common stock of the REIT (“Stock”"STOCK") or cash (or a combination thereof) in accordance with the redemption procedures described in the UPREIT Partnership Agreement. 3.3.2. At ClosingContributor acknowledges that the LP Units are not certificated and that, all therefore, the issuance of the LP Units shall be issued, delivered evidenced by the execution and distributed to Contributor unless at or prior to Closing, Contributor directs the UPREIT to issue, deliver and distribute any or all delivery of the LP Units to those LP Unit recipients set forth on Exhibit D attached hereto (together with Contributor, the “LP Unit Recipients”), in which event the UPREIT shall follow the Contributor’s direction with respect an amendment to the issuancePartnership Agreement, delivery and distribution of LP Units. Each LP Unit Recipient shall receive, with respect to the Property, as reflected on Exhibit D, that number of LP Units (subject to appropriate rounding to eliminate fractional LP Units) as which amendment shall be set forth on Exhibit D; provided, however, that in executed and delivered by the event REIT at Closing (the Closing Statement sets forth and contains information with respect to the breakdown of the Total LP Unit Amount among LP Unit Recipients that differs from that reflected on Exhibit D, the Closing Statement shall be controlling in all such respects. The number of LP Units issued to each LP Unit Recipient with respect to the Property shall equal the product of (A) the Total LP Unit Amount, multiplied by (B) the “Ownership Percentage in Subject Property” (expressed as a fraction) of each LP Unit Recipient as reflected on Exhibit D. The number of LP Units issued to each LP Unit Recipient shall be allocated as Convertible Common Units on the same percentage basis described in the first sentence of Section 3.3.1 above"AMENDMENT"). 3.3.3. (iii) For purposes of determining the number of LP Units to be delivered in satisfaction of payment of the Total LP Unit Amount, the Convertible Common Units Total LP Unit Amount shall have be divided by a per unit value "UNIT PRICE," which shall be equal to the weighted average (by daily trading volume) of $2.25 the closing price of shares of Stock for the forty-five (each45) trading days preceding, a “Unit Price”but excluding, the five (5) business days prior to the Closing Date (the "CALCULATED PRICE"). The LP Unit Schedule shall reflect the Unit Price. Notwithstanding anything to the contrary in this Subparagraph 2(c)(iii): (A) in the event the Calculated Price is calculated to be in excess of $30.00, the Unit Price shall be deemed to be $30.00; and (B) in the event the Calculated Price is calculated to be less than $22.00, the Unit Price shall be deemed to be $22.00. In the event that, on the Closing Date, Contributor and Acquiror fail to agree upon the LP Unit Schedule and Acquiror's corresponding calculation (as contemplated above) of the weighted average of the closing price of shares of Stock, then the Closing shall be postponed until such calculation and determination of the number of LP Units to be delivered at the rescheduled Closing (the "INDEPENDENT DETERMINATION") shall be made by KPMG Peat Marwick LLP (the "INDEPENDENT FIRM"); provided, however, that if KPMG Peat Marwick LLP, as of the date on which such calculation is required to be made, represents any or all of Contributor, Acquiror or any or all of their respective affiliates, then the Independent Firm shall be another so-called "Big Six" accounting firm mutually and reasonably agreed to by Coopers & Lybrxxx XXX, on behalf of Acquiror, and Ernst & Young LLP, on behalf of Contributor. The Independent Determination shall be conclusive and binding on Contributor and Acquiror, and each of Contributor and Acquiror shall pay one-half of the fees imposed by the Independent Firm in connection with the Independent Determination. 3.3.4. (iv) Contributor shall deliver has delivered to Acquiror, no later than ten (10) days prior to Closing, and shall cause has caused its partners, shareholders, members or other equity interest holders(including, as the case may be (“Interest Holders”)without limitation, those partners, shareholders and members that are LP Unit Recipients) and any other LP Unit Recipient to also deliver to Acquiror, or to any other party designated by Acquiror, no later than ten (10) days prior to Closing, a completed questionnaire and representation letter (in substantially the form set forth in Exhibit D T attached hereto, the “Investor Materials”"INVESTOR MATERIALS") [signed by a custodian under the New York Uniform Gift to Minors Act ("NYUGMA") where appropriate, for those LP Unit Recipients who are minors under New York law] providing, among other things, information concerning Contributor’s, each Interest Holder’s 's and each LP Unit Recipient’s of its partners' and shareholders' status as an accredited investor (“Accredited Investor”"ACCREDITED INVESTOR"), as such term is defined in Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”"SECURITIES ACT"), and shall provide or cause to be provided to Acquiror, or to any other party designated by Acquiror, such other information and documentation as may reasonably be requested by Acquiror in furtherance of the issuance of the LP Units as contemplated hereby. Notwithstanding anything contained in this Agreement to the contrary, in the event that, in the reasonable written opinion of securities or tax counsel for Acquiror, based on advice of its securities counselas the case may be, (i) any such person or entity providing Investor Materials is not considered an Accredited Investor, (ii) the proposed issuance of LP Units hereunder might not qualify for the exemption from the registration requirements of provided by Section 5 4(2) of the Securities Act, or (iii) the proposed issuance of LP Units hereunder would violate any applicable federal or state securities laws, rules or regulations, or agreements to which the REIT or the UPREIT is subjectprivy, or any tax related or other legal rules, agreements or constraints applicable to Acquiror, the REIT or the UPREIT, Acquiror shall so advise Contributor, in writing (the “Regulatory Violation Notice”)"REGULATORY VIOLATION NOTICE") within five (5) business days after such determination is made. In the event a Regulatory Violation Notice is delivered for the reason set forth in clause (i) above, the The interest of each and every person or other entity with respect to which Acquiror delivers a Regulatory Violation Notice shall be redeemed by the appropriate Contributor, at no cost to any or all of Acquiror, the REIT and the UPREIT, at least two business days Contributor prior to the Closing Date. In the event of any such redemption, the Closing Statement Updated Exhibit A-3 shall reflect the updated list of LP Unit Recipients and the revised ownership percentages in the appropriate LP Unit Recipients and the Property Projects resulting from such redemption. Subject to the terms of the Master Agreement, in the event a Regulatory Violation Notice is delivered for another reason, this Agreement shall terminate, and no party shall have any further liability hereunder except (a) as otherwise expressly set forth in this Agreement and (b) to the extent a breach of this Agreement gives rise to, or becomes the basis for, the Regulatory Violation Notice. 3.3.5. (v) Contributor hereby covenants and agrees that it shall deliver or shall cause each of its partners, shareholders, members and any other LP Unit Recipient to deliver to Acquiror, or to any other party designated by Acquiror, any documentation that may be required under the UPREIT Partnership Agreement or any charter document of the REIT, and such other information and documentation as may reasonably be requested by Acquiror, at such time as any LP Units are redeemed for shares of Stock (“Conversion Shares”"CONVERSION SHARES"). The preceding covenant shall survive the Closing and shall not merge into any of the conveyancing documents documentation delivered at Closing. 3.3.6. (vi) The parties acknowledge thatUPREIT, except the REIT and the Contributor intend to the extent that any portion of the Total LP Unit Amount consists of cash, Contributor intends for and shall treat the transfer of the Property Projects in exchange for LP Units (the “Exchange”"EXCHANGE") to result in non-recognition of gain or loss for federal income tax purposes as a partnership contribution pursuant to Section 721 of the Internal Revenue Code of 1986, as amended (the “Code”) (such treatment, the “Intended Tax Treatment”"CODE"). Acquiror, the The UPREIT and the REIT shall cooperate in all reasonable respects with Contributor to facilitate effectuate such Intended Tax TreatmentExchange; provided, however, that: (iA) The Closing shall not be extended or delayed by reason of such Intended Tax TreatmentExchange, unless Acquiror has breached its obligations to Contributor under this Agreement; (iiB) None of Acquiror, the UPREIT nor the REIT shall be required to incur any additional extraordinary (as opposed to a normal, customary and recurring) cost or expense primarily as a result of such Intended Tax TreatmentExchange, other than the cost of Acquiror’s 's counsel in connection with the preparation of this Agreement. Notwithstanding anything to the contrary in the foregoing sentence, the UPREIT and the REIT shall be responsible for costs associated with any Internal Revenue Service IRS audit made directly of either or both of the UPREIT and the REIT relating to their respective operations (as opposed to an audit that is ancillary to an audit made of any or all of the entities comprising the Contributor). In the event of the occurrence of an audit made directly of any or all of the entities comprising the Contributor, and relating to the Contributor’s operations, the Contributor shall be responsible for all costs associated therewith. Contributor hereby covenants and agrees that it shall, promptly forthwith on demand, reimburse Acquiror, the UPREIT or the REIT for any additional extraordinary cost or expense (as opposed to a normal, customary and recurring cost or expense, such as the analysis or computation related to the manner in which depreciation and built-in gain are allocated amongst the LP Unit Recipients), including, but not limited to, reasonable attorneys’ ' fees, actually incurred by any either or all both of Acquiror, the UPREIT and the REIT as a result of structuring the Exchange in order characterization of the contribution of the Projects pursuant to achieve this Agreement as a partnership contribution pursuant to Section 721 of the Intended Tax TreatmentCode, or which additional extraordinary cost or expense is or may be otherwise directly attributable thereto; andto the Exchange; (iiiC) Subject to the UPREIT’s 's and the REIT’s 's performance and fulfillment in all material respects of the express covenants and conditions contained in this Agreement, none of Acquiror, the UPREIT or the REIT warrant, nor shall any of them be responsible for, the federal, state or local tax consequences to any or all of Contributor, any or all of the Interest Holders Contributor's partners and any or all of the LP Unit Recipients resulting from either (i) of the transactions contemplated by this Agreement or (ii) including, without limitation, the allocation, if any, allocation of losses and liabilities of the UPREIT to and among the Contributor or any of the Interest Holders in Contributor under the UPREIT Agreement, the Code or Treasury Regulations promulgated under the Code); and (D) Except as otherwise expressly set forth in this Agreement and in the documents executed and delivered by Acquiror at the Closing, none of Acquiror, the UPREIT nor the REIT shall incur any liability under any document or agreement required to be executed or delivered in connection with such Exchange. The provisions of this Section 3.3.6 Subparagraph 2(c)(vi) shall survive the Closing and shall not merge into any conveyancing documents delivered at Closing.