Common use of Maintenance of REIT Status Clause in Contracts

Maintenance of REIT Status. (a) So long as WHL or any of its wholly-owned subsidiaries (a "WHL Entity") owns any of the Series D Equity Shares, the Company will continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code. (b) If the Company shall fail to continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code (a "REIT-TERMINATION EVENT"), each WHL Entity shall have the right to require the Company, to the extent the Company shall have funds legally available therefor, to repurchase any or all of the Series D Equity Shares held by such WHL Entity at a repurchase price payable in cash (the "REIT-REPURCHASE PAYMENT") in an amount equal to 115% of the Liquidation Preference thereof, plus accrued and unpaid dividends whether or not declared, if any to the date of repurchase or the date payment is made available (the "REIT-REPURCHASE DATE"). (c) Within 15 days following the Company becoming aware that a REIT-Termination Event has occurred, the Company shall mail by first class mail or recognized overnight courier a notice to each WHL Entity holding Series D Equity Shares stating (A) that a REIT-Termination Event has occurred and that such holder has the right to require the Company to repurchase any or all of the Series D Equity Shares, (B) the date of repurchase (which shall be a Business Day, no earlier than 30 days and no later than 60 days from the date such notice is mailed, or such later date as may be necessary to comply with the requirements of the Exchange Act), (C) the repurchase price and (D) the instructions determined by the Company, consistent with this subsection, that such holder must follow in order to have the Series D Equity Shares repurchased. (d) On the REIT-Repurchase Date, the Company, to the extent lawful, shall accept for payment Series D Equity Shares or portions thereof tendered by the WHL Entities pursuant to the REIT-Repurchase Offer and promptly, by wire transfer of immediately available funds to such holders, as directed by such holders, send an amount equal to the REIT-Repurchase Payment in respect of all Series D Equity Shares, or portions thereof so tendered. (e) Notwithstanding anything else herein, to the extent they are applicable to any REIT-Repurchase Offer, the Company will comply with any federal and state securities laws, rules and regulations and all time periods and requirements shall be adjusted accordingly.

Maintenance of REIT Status. (a) So long as WHL or any the Trustee on behalf of its wholly-owned subsidiaries (a "WHL Entity") WAT owns any of the Shares of Series D Equity SharesD-1 Preferred Stock, the Company will continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code. (b) If the Company shall fail to continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code (a "REIT-TERMINATION EVENTTermination Event"), each WHL Entity the Trustee on behalf of WAT shall have the right to require the Company, to the extent the Company shall have funds legally available therefor, to repurchase any or all of the Series D Equity Shares D-1 Preferred Stock held by such WHL Entity the Trustee on behalf of WAT at a repurchase price payable in cash (the "REIT-REPURCHASE PAYMENTRepurchase Payment") in an amount equal to 115% of the Liquidation Preference (as defined in the Series D-1 Certificate) thereof, plus accrued and unpaid dividends whether or not declared, if any to the date of repurchase or the date payment is made available (the "REIT-REPURCHASE DATERepurchase Date"). (c) Within 15 days following the Company becoming aware that a REIT-Termination Event has occurred, the Company Corporation shall mail by first class mail or recognized overnight courier a notice to each WHL Entity holding Series D Equity Shares the Trustee and the Manager stating (A) that a REIT-Termination Event has occurred and that such holder the Trustee on behalf of WAT has the right to require the Company to repurchase any or all of the Series D Equity SharesD-1 Preferred Shares then held by the Trustee on behalf of WAT, (B) the date of repurchase (which shall be a Business DayDay (as defined in the Series D-1 Certificate), no earlier than 30 days and no later than 60 days from the date such notice is mailed, or such later date as may be necessary to comply with the requirements of the Securities Exchange ActAct of 1934, as amended), (C) the repurchase price and (D) the instructions determined by the Company, consistent with this subsection, that such holder the Trustee must follow in order to have the Series D Equity D-1 Preferred Shares repurchased. (d) On the REIT-Repurchase Date, the Company, to the extent lawful, shall accept for payment Series D Equity Shares D-1 Preferred Stock or portions thereof tendered by the WHL Entities holders thereof pursuant to the REIT-REIT- Repurchase Offer and promptly, by wire transfer of immediately available funds to such holders, as directed by such holders, send an amount equal to the REIT-Repurchase Payment in respect of all Series D Equity SharesD-1 Preferred Stock, or portions thereof so tendered. (e) Notwithstanding anything else hereinherein to the contrary, to the extent they are applicable to any REIT-Repurchase Offer, the Company will comply with any federal and state securities laws, rules and regulations and all time periods and requirements shall be adjusted accordingly.

Maintenance of REIT Status. (a) So long as WHL or any of its wholly-owned subsidiaries (a "WHL Entity") the Investor owns any of the Series D Equity SharesG Preferred Stock or Conversion Stock, the Company will continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code. (b) If the Company shall fail to continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code (a "REIT-TERMINATION EVENT"), each WHL Entity the Investor shall have the right to require the Company, to the extent the Company shall have funds legally available therefor, to repurchase any or all of the Series D Equity Shares G Preferred Stock held by such WHL Entity the Investor at a repurchase price payable in cash (( the "REIT-REPURCHASE PAYMENT") in an amount equal to 115% of the Liquidation Preference thereof, plus accrued and unpaid dividends whether or not declared, if any to the date of repurchase or the date payment is made available (the "REIT-REIT REPURCHASE DATE"). (c) Within 15 days following the Company becoming aware that a REIT-REIT- Termination Event has occurred, the Company shall mail send by first class mail or recognized overnight courier a notice to each WHL Entity holding Series D Equity Shares the Investor stating (A) that a REIT-Termination Event has occurred and that such holder the Investor has the right to require the Company to repurchase any or all of the Series D Equity SharesG Preferred Stock then held by the Investor, (B) the date of repurchase (which shall be a Business Day, no earlier than 30 days and no later than 60 days from the date such notice is mailedsent, or such later date as may be necessary to comply with the requirements of the Exchange Act), (C) the repurchase price and (D) the instructions determined by the Company, consistent with this subsection, that such holder the Investor must follow in order to have the Series D Equity Shares G Preferred Stock repurchased. (d) On the REIT-Repurchase Date, the Company, to the extent lawful, shall accept for payment Series D Equity G Preferred Shares or portions thereof tendered by the WHL Entities Investor thereof pursuant to the REIT-Repurchase Offer and promptly, by wire transfer of immediately available funds to such holdersthe Investor, as directed by such holdersInvestor, send an amount equal to the REIT-Repurchase Payment in respect of all Series D Equity Shares, G Preferred Stock or portions thereof so tendered. (e) Notwithstanding anything else herein, to the extent they are applicable to any REIT-Repurchase Offer, the Company will comply with any federal and state securities laws, rules and regulations and all time periods and requirements shall be adjusted accordingly.

Maintenance of REIT Status. (a) So long as WHL or any the Trustee on behalf of its wholly-owned subsidiaries (a "WHL Entity") WAT owns any of the Shares of Series D Equity SharesPreferred Stock, the Company will continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code. (b) If the Company shall fail to continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code (a "REIT-TERMINATION EVENT"), each WHL Entity the Trustee on behalf of WAT shall have the right to require the Company, to the extent the Company shall have funds legally available therefor, to repurchase any or all of the Series D Equity Preferred Shares held by such WHL Entity the Trustee on behalf of WAT at a repurchase price payable in cash (the "REIT-REPURCHASE PAYMENT") in an amount equal to 115% of the Liquidation Preference (as defined in the Series D Certificate of Designation) thereof, plus accrued and unpaid dividends whether or not declared, if any to the date of repurchase or the date payment is made available (the "REIT-REPURCHASE DATE"). (c) Within 15 days following the Company becoming aware that a REIT-Termination Event has occurred, the Company Corporation shall mail by first class mail or recognized overnight courier a notice to each WHL Entity holding Series D Equity Shares the Trustee and the Manager stating (A) that a REIT-Termination Event has occurred and that such holder the Trustee on behalf of WAT has the right to require the Company to repurchase any or all of the Series D Equity SharesPreferred Shares then held by the Trustee on behalf of WAT, (B) the date of repurchase (which shall be a Business DayDay (as defined in the Series D Certificate of Designation), no earlier than 30 days and no later than 60 days from the date such notice is mailed, or such later date as may be necessary to comply with the requirements of the Securities Exchange ActAct of 1934, as amended), (C) the repurchase price and (D) the instructions determined by the Company, consistent with this subsection, that such holder the Trustee must follow in order to have the Series D Equity Preferred Shares repurchased. (d) On the REIT-Repurchase Date, the Company, to the extent lawful, shall accept for payment Series D Equity Preferred Shares or portions thereof tendered by the WHL Entities holders thereof pursuant to the REIT-Repurchase Offer and promptly, by wire transfer of immediately available funds to such holders, as directed by such holders, send an amount equal to the REIT-Repurchase Payment in respect of all Series D Equity Preferred Shares, or portions thereof so tendered. (e) Notwithstanding anything else herein, to the extent they are applicable to any REIT-Repurchase Offer, the Company will comply with any federal and state securities laws, rules and regulations and all time periods and requirements shall be adjusted accordingly.

Maintenance of REIT Status. (a) So long as WHL or any of its wholly-owned subsidiaries (a "WHL Entity") owns any of the Series D Equity SharesPreferred Shares or the Conversion Shares remain issued and outstanding, the Company will continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code. (b) If the Company shall fail to continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code (a "REIT-TERMINATION EVENTRepurchase Event"), each WHL Entity the Investor shall have the right to require the Company, to the extent the Company shall have funds legally available therefor, to repurchase any or all of the Series D Equity Preferred Shares or the Conversion Shares held by such WHL Entity the Investor at a repurchase price payable in cash (the "REIT-REPURCHASE PAYMENT") in an amount equal to 115110% of (i) in the case of the Series D Preferred Shares, the Liquidation Preference (as defined in the Series D Preferred Articles Supplementary) thereof, plus accrued and unpaid dividends whether or not declared, if any to the date of repurchase or the date payment is made available (the "REIT-REPURCHASE DATERepurchase Date") or (ii) in the case of the Conversion Shares, the liquidation preference on the number of Series D Preferred Shares which the Holder would have held if the Holder had not converted Series D Preferred Shares into Conversion Shares, pursuant to the offer described in SUBSECTION (c) below (the "REIT-Repurchase Offer"). (c) Within 15 days following the Company becoming aware that a REIT-Termination Repurchase Event has occurred, the Company shall mail send by first class mail or recognized overnight courier a notice to each WHL Entity holding Series D Equity Shares the Investor stating (A) that a REIT-Termination Repurchase Event has occurred and that such holder the Investor has the right to require the Company to repurchase any or all of the Series D Equity SharesPreferred Shares or the Conversion Shares then held by the Investor in cash, (B) the date of repurchase (which shall be a Business Daybusiness day, no earlier than 30 days and no later than 60 days from the date such notice is mailedsent, or such later date as may be necessary to comply with the requirements of the Exchange Act), (C) the repurchase price and (D) the instructions determined by the Company, consistent with this subsection, that such holder the Investor must follow in order to have the Series D Equity Preferred Shares or the Conversion Shares repurchased. (d) On the REIT-Repurchase Date, the Company, to the extent lawful, shall accept for payment Series D Equity Preferred Shares or Conversion Shares or portions thereof tendered by the WHL Entities Investor or an Affiliate of the Investor pursuant to the REIT-Repurchase Offer and promptly, promptly send by overnight courier or by wire transfer of immediately available funds to such holdersthe Investor, as directed by such holdersthe Investor, send an amount equal to the REIT-Repurchase Payment in respect of all Series D Equity Shares, Preferred Shares or Conversion Shares or portions thereof so tendered. (e) Notwithstanding anything else herein, to the extent they are applicable to any REIT-Repurchase Offer, the Company will comply with any federal and state securities laws, rules and regulations and all time periods and requirements shall be adjusted accordingly. (f) Notwithstanding the provisions of this SECTION 6.6, in no event shall the Company be required to repurchase any Series D Preferred Shares at any time that such repurchase is prohibited by the Declaration or the Company's debt instruments.

Maintenance of REIT Status. (a) So long as WHL or any of its wholly-owned subsidiaries (a "WHL Entity") owns any of the Series D Equity SharesA Preferred Shares or the Common Shares remain issued and outstanding, the Company will continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code. (b) If the Company shall fail to continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code (a "REIT-TERMINATION EVENTRepurchase Event"), each WHL Entity the Investor shall have the right to require the Company, to the extent the Company shall have funds legally available therefor, to repurchase any or all of the Series D Equity A Preferred Shares or the Common Shares held by such WHL Entity the Investor at a repurchase price payable in cash (the "REIT-REPURCHASE PAYMENT") in an amount equal to 115% of the Liquidation Preference liquidation preference thereof, plus accrued and unpaid dividends whether or not declared, if any (the "REIT-Repurchase Payment"), to the date of repurchase or the date payment is made available (the "REIT-REPURCHASE DATERepurchase Date"), pursuant to the offer described in subsection (c) below (the "REIT-Repurchase Offer"). (c) Within 15 days following the Company becoming aware that a REIT-Termination REIT- Repurchase Event has occurred, the Company shall mail by first class mail or recognized overnight courier a notice to each WHL Entity holding Series D Equity Shares the Investor stating (A) that a REIT-Termination Repurchase Event has occurred and that such holder the Investor has the right to require the Company to repurchase any or all of the Series D Equity SharesA Preferred Shares or the Common Shares then held by the Investor in cash, (B) the date of repurchase (which shall be a Business Daybusiness day, no earlier than 30 days and no later than 60 days from the date such notice is mailed, or such later date as may be necessary to comply with the requirements of the Exchange Act), (C) the repurchase price and (D) the instructions determined by the Company, consistent with this subsection, that such holder the Investor must follow in order to have the Series D Equity A Preferred Shares or the Common Shares repurchased. (d) On the REIT-Repurchase Date, the Company, to the extent lawful, shall accept for payment Series D Equity A Preferred Shares or Common Shares or portions thereof tendered by the WHL Entities Investor or an affiliate of the Investor pursuant to the REIT-Repurchase Offer and promptly, promptly mail by first class mail or overnight courier or by wire transfer of immediately available funds to such holdersthe Investor, as directed by such holdersthe Investor, send in an amount equal to the REIT-Repurchase Payment in respect of all Series D Equity Shares, A Preferred Shares or Common Shares or portions thereof so tendered. (e) Notwithstanding anything else herein, to the extent they are applicable to any REIT-Repurchase Offer, the Company will comply with any federal and state securities laws, rules and regulations and all time periods and requirements shall be adjusted accordingly. (f) Notwithstanding the provisions of this Section 6.4, in no event shall the Company be required to repurchase any Series A Preferred Shares at any time that such repurchase is prohibited by the Declaration or the Company's debt instruments.

Maintenance of REIT Status. (a) So long as WHL or any of its wholly-owned subsidiaries (a "WHL Entity") owns any of the Series D Equity SharesA Preferred Shares or the Common Shares remain issued and outstanding, the Company will continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code. (b) If the Company shall fail to continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code (a "REIT-TERMINATION EVENTRepurchase Event")) , each WHL Entity the Investor shall have the right to require the Company, to the extent the Company shall have funds legally available therefor, to repurchase any or all of the Series D Equity A Preferred Shares or the Common Shares held by such WHL Entity the Investor at a repurchase price payable in cash (the "REIT-REPURCHASE PAYMENT") in an amount equal to 115% of the Liquidation Preference liquidation preference thereof, plus accrued and unpaid dividends whether or not declared, if any (the "REIT-Repurchase Payment"), to the date of repurchase or the date payment is made available (the "REIT-REPURCHASE DATERepurchase Date") , pursuant to the offer described in subsection (c) below (the "REIT-Repurchase offer"). (c) Within 15 days following the Company becoming aware that a REIT-Termination Repurchase Event has occurred, the Company shall mail by first class mail or recognized overnight courier a notice to each WHL Entity holding Series D Equity Shares the Investor stating (A) that a REIT-Termination Repurchase Event has occurred and that such holder the Investor has the right to require the Company to repurchase any or all of the Series D Equity SharesA Preferred Shares or the Common Shares then held by the investor in cash, (B3) the date of repurchase (which shall be a Business Daybusiness day, no earlier than 30 days and no later than 60 days from the date such notice is mailed, or such later date as may be necessary to comply with the requirements of the Exchange Act)) , (C) the repurchase price and (D) the instructions determined by the Company, consistent with this subsection, that such holder the Investor must follow in order to have the Series D Equity A Preferred Shares or the Common Shares repurchased. (d) On the REIT-Repurchase Date, the Company, to the extent lawful, shall accept for payment Series D Equity A Preferred Shares or Common Shares or portions thereof tendered by the WHL Entities Investor or an affiliate of the Investor pursuant to the REIT-Repurchase Offer offer and promptly, promptly mail by first class mail or overnight courier or by wire transfer of immediately available funds to such holdersthe Investor, as directed by such holdersthe Investor, send in an amount equal to the REIT-Repurchase Payment in respect of all Series D Equity Shares, A Preferred Shares or Common shares or portions thereof so tendered. (e) Notwithstanding anything else herein, to the extent they are applicable to any REIT-Repurchase Offer, the Company will comply with any federal and state securities laws, rules and regulations and all time periods and requirements shall be adjusted accordingly. (f) Notwithstanding the provisions of this Section 6.4, in no event shall the Company be required to repurchase any Series A Preferred Shares at any time that such repurchase is prohibited by the Declaration or the Company's debt instruments.

Maintenance of REIT Status. (a) So long as WHL or any the Trustee on behalf of its wholly-owned subsidiaries (a "WHL Entity") WAT owns any of the Shares of Series D Equity SharesD-1 Preferred Stock, the Company will continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code. (b) If the Company shall fail to continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code (a "REIT-TERMINATION EVENT"), each WHL Entity the Trustee on behalf of WAT shall have the right to require the Company, to the extent the Company shall have funds legally available therefor, to repurchase any or all of the Series D Equity Shares D-1 Preferred Stock held by such WHL Entity the Trustee on behalf of WAT at a repurchase price payable in cash (the "REIT-REPURCHASE PAYMENT") in an amount equal to 115% of the Liquidation Preference (as defined in the Series D-1 Certificate) thereof, plus accrued and unpaid dividends whether or not declared, if any to the date of repurchase or the date payment is made available (the "REIT-REPURCHASE DATE"). (c) Within 15 days following the Company becoming aware that a REIT-Termination Event has occurred, the Company Corporation shall mail by first class mail or recognized overnight courier a notice to each WHL Entity holding Series D Equity Shares the Trustee and the Manager stating (A) that a REIT-Termination Event has occurred and that such holder the Trustee on behalf of WAT has the right to require the Company to repurchase any or all of the Series D Equity SharesD-1 Preferred Shares then held by the Trustee on behalf of WAT, (B) the date of repurchase (which shall be a Business DayDay (as defined in the Series D-1 Certificate), no earlier than 30 days and no later than 60 days from the date such notice is mailed, or such later date as may be necessary to comply with the requirements of the Securities Exchange ActAct of 1934, as amended), (C) the repurchase price and (D) the instructions determined by the Company, consistent with this subsection, that such holder the Trustee must follow in order to have the Series D Equity D-1 Preferred Shares repurchased. (d) On the REIT-Repurchase Date, the Company, to the extent lawful, shall accept for payment Series D Equity Shares D-1 Preferred Stock or portions thereof tendered by the WHL Entities holders thereof pursuant to the REIT-Repurchase Offer and promptly, by wire transfer of immediately available funds to such holders, as directed by such holders, send an amount equal to the REIT-Repurchase Payment in respect of all Series D Equity SharesD-1 Preferred Stock, or portions thereof so tendered. (e) Notwithstanding anything else hereinherein to the contrary, to the extent they are applicable to any REIT-Repurchase Offer, the Company will comply with any federal and state securities laws, rules and regulations and all time periods and requirements shall be adjusted accordingly.

Maintenance of REIT Status. (a) So long as WHL or any of its wholly-owned subsidiaries (a "WHL Entity") owns any of the Series D Equity SharesClass W Preferred Shares or the Common Shares remain issued and outstanding, the Company will shall use its reasonable best efforts to continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code. (b) If the Company shall fail to continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code (a "REIT-TERMINATION EVENTRepurchase Event"), each WHL Entity the Investor shall have the right to require the Company, to the extent the Company shall have funds legally available therefor, to repurchase any or all of the Series D Equity Class W Preferred Shares held by such WHL Entity the Investor at a repurchase price payable in cash (the "REIT-REPURCHASE PAYMENT") in an amount equal to 115105% of the Liquidation Preference liquidation preference thereof, plus accrued and unpaid dividends whether or not declared, if any (the "REIT-Repurchase Payment"), to the date of repurchase or the date payment is made available (the "REIT-REPURCHASE DATERepurchase Date"), pursuant to the offer described in subsection (c) below (the "REIT-Repurchase Offer"). (c) Within 15 days following the Company becoming aware that a REIT-Termination Repurchase Event has occurred, the Company shall mail by first class mail or recognized overnight courier a notice to each WHL Entity holding Series D Equity Shares the Investor stating (Ai) that a REIT-Termination Repurchase Event has occurred and that such holder the Investor has the right to require the Company to repurchase any or all of Class W Preferred Shares then held by the Series D Equity SharesInvestor in cash, (Bii) the date of repurchase (which shall be a Business Daybusiness day, no earlier than 30 days and no later than 60 days from the date such notice is mailed, or such later date as may be necessary to comply with the requirements of the Exchange Actapplicable law), (Ciii) the repurchase price and (Div) the instructions determined by the Company, consistent with this subsection, that such holder the Investor must follow in order to have the Series D Equity its Class W Preferred Shares repurchased. (d) On the REIT-Repurchase Date, the CompanyCompany will, to the extent lawful, shall accept for payment Series D Equity Class W Preferred Shares or portions thereof tendered by delivered to the WHL Entities Company pursuant to the REIT-Repurchase Offer and promptly, promptly mail by recognized overnight courier or by wire transfer of immediately available funds to such holdersthe Investor, as directed by such holdersthe Investor, send in an amount equal to the REIT-Repurchase Payment in respect of all Series D Equity Shares, Class W Preferred Shares or portions thereof so tendereddelivered. (e) Notwithstanding anything else herein, to the extent they are applicable to any REIT-Repurchase Offer, the Company will comply with any federal and state securities laws, rules and regulations and all time periods and requirements shall be adjusted accordingly.

Maintenance of REIT Status. (ai) So long as WHL or any Each of CNLRP and USRP, for all taxable years commencing with its wholly-owned subsidiaries (a "WHL Entity") owns any respective initial taxable year through the date of the Series D Equity SharesMergers, the Company will continue has been operated so as to be taxed qualify as a real estate investment trust pursuant (a “REIT”) within the meaning of Section 856 of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and published interpretations thereunder, and has been so qualified as a REIT for such years, (ii) the Company, from the date of the Mergers to Sections 856 through 860 the Closing Date, has operated, and expects to continue to operate, in such a manner as to qualify as a REIT for the taxable year beginning January 1, 2005 and (iii) CNLRP and the Company, and to the knowledge of the Company, USRP, have not taken or omitted to take any action which would result in a challenge to their status as a REIT, and no such challenge is pending or, to the Company’s knowledge, threatened. The Company intends to continue to operate in such a manner as to qualify as a REIT. Each Subsidiary of the Company which is a partnership or limited liability company (i) has been since its formation and continues to be treated for federal income tax purposes as a partnership or disregarded as a separate entity, as the case may be, and has not been treated for federal income tax purposes as a corporation or an association taxable as a corporation and (ii) has not since the later of its formation or the acquisition by the Company of a direct or indirect interest therein owned any assets (including, without limitation, securities) that would cause the Company to violate Section 856(c)(4) of the Code. (b) If . Each Subsidiary of the Company shall fail to continue to be taxed as that is a real estate investment trust pursuant to Sections 856 through 860 corporation has been since the later of its formation or the acquisition by the Company of a direct or indirect interest therein either a qualified REIT subsidiary under Section 856(i) of the Code (or a "REIT-TERMINATION EVENT"), taxable REIT subsidiary under Section 856(1) of the Code or a corporation joining in the consolidated taxable REIT subsidiary return. All statements in each WHL Entity shall have of the right to require Disclosure Package and the Prospectus regarding the Company’s qualification as a REIT are true, to the extent the Company shall have funds legally available therefor, to repurchase any or complete and correct in all of the Series D Equity Shares held by such WHL Entity at a repurchase price payable in cash (the "REIT-REPURCHASE PAYMENT") in an amount equal to 115% of the Liquidation Preference thereof, plus accrued and unpaid dividends whether or not declared, if any to the date of repurchase or the date payment is made available (the "REIT-REPURCHASE DATE")material respects. (c) Within 15 days following the Company becoming aware that a REIT-Termination Event has occurred, the Company shall mail by first class mail or recognized overnight courier a notice to each WHL Entity holding Series D Equity Shares stating (A) that a REIT-Termination Event has occurred and that such holder has the right to require the Company to repurchase any or all of the Series D Equity Shares, (B) the date of repurchase (which shall be a Business Day, no earlier than 30 days and no later than 60 days from the date such notice is mailed, or such later date as may be necessary to comply with the requirements of the Exchange Act), (C) the repurchase price and (D) the instructions determined by the Company, consistent with this subsection, that such holder must follow in order to have the Series D Equity Shares repurchased. (d) On the REIT-Repurchase Date, the Company, to the extent lawful, shall accept for payment Series D Equity Shares or portions thereof tendered by the WHL Entities pursuant to the REIT-Repurchase Offer and promptly, by wire transfer of immediately available funds to such holders, as directed by such holders, send an amount equal to the REIT-Repurchase Payment in respect of all Series D Equity Shares, or portions thereof so tendered. (e) Notwithstanding anything else herein, to the extent they are applicable to any REIT-Repurchase Offer, the Company will comply with any federal and state securities laws, rules and regulations and all time periods and requirements shall be adjusted accordingly.

Maintenance of REIT Status. (a) So long as WHL or any of its wholly-owned subsidiaries (a "WHL Entity") owns any of the Series D Equity SharesClass X Preferred Shares or the Common Shares remain issued and outstanding, the Company will shall use its reasonable best efforts to continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code. (b) If the Company shall fail to continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code (a "REIT-TERMINATION EVENTRepurchase Event"), each WHL Entity the Investor shall have the right to require the Company, to the extent the Company shall have funds legally available therefor, to repurchase any or all of the Series D Equity Class X Preferred Shares held by such WHL Entity the Investor at a repurchase price payable in cash (the "REIT-REPURCHASE PAYMENT") in an amount equal to 115105% of the Liquidation Preference liquidation preference thereof, plus accrued and unpaid dividends whether or not declared, if any (the "REIT-Repurchase Payment"), to the date of repurchase or the date payment is made available (the "REIT-REPURCHASE DATERepurchase Date"), pursuant to the offer described in subsection (c) below (the "REIT-Repurchase Offer"). (c) Within 15 days following the Company becoming aware that a REIT-Termination Repurchase Event has occurred, the Company shall mail by first class mail or recognized overnight courier a notice to each WHL Entity holding Series D Equity Shares the Investor stating (Ai) that a REIT-Termination Repurchase Event has occurred and that such holder the Investor has the right to require the Company to repurchase any or all of Class X Preferred Shares then held by the Series D Equity SharesInvestor in cash, (Bii) the date of repurchase (which shall be a Business Daybusiness day, no earlier than 30 days and no later than 60 days from the date such notice is mailed, or such later date as may be necessary to comply with the requirements of the Exchange Actapplicable law), (Ciii) the repurchase price and (Div) the instructions determined by the Company, consistent with this subsection, that such holder the Investor must follow in order to have the Series D Equity its Class X Preferred Shares repurchased. (d) On the REIT-Repurchase Date, the CompanyCompany will, to the extent lawful, shall accept for payment Series D Equity Class X Preferred Shares or portions thereof tendered by delivered to the WHL Entities Company pursuant to the REIT-Repurchase Offer and promptly, promptly mail by recognized overnight courier or by wire transfer of immediately available funds to such holdersthe Investor, as directed by such holdersthe Investor, send in an amount equal to the REIT-Repurchase Payment in respect of all Series D Equity Shares, Class X Preferred Shares or portions thereof so tendereddelivered. (e) Notwithstanding anything else herein, to the extent they are applicable to any REIT-Repurchase Offer, the Company will comply with any federal and state securities laws, rules and regulations and all time periods and requirements shall be adjusted accordingly.

Maintenance of REIT Status. (a) So long as WHL or any the Trustee on behalf of its wholly-owned subsidiaries (a "WHL Entity") owns WAT holds any of the Shares of Series D Equity SharesE Preferred Stock, the Company will continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the "Code"). (b) If the Company shall fail to continue to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code (a "REIT-TERMINATION EVENT"), each WHL Entity the Trustee on behalf of WAT shall have the right to require the Company, to the extent the Company shall have funds legally available therefor, to repurchase any or all of the Series D Equity Shares E Preferred Stock held by such WHL Entity the Trustee on behalf of WAT at a repurchase price payable in cash (the "REIT-REPURCHASE PAYMENT") in an amount equal to 115% of the Liquidation Preference (as defined in the Series E Certificate) thereof, plus accrued and unpaid dividends whether or not declared, if any to the date of repurchase or the date payment is made available (the "REIT-REPURCHASE DATE"). (c) Within 15 days following the Company becoming aware that a REIT-Termination Event has occurred, the Company Corporation shall mail by first class mail or recognized overnight courier a notice to each WHL Entity holding Series D Equity Shares the Trustee and the Manager stating (A) that a REIT-Termination Event has occurred and that such holder the Trustee on behalf of WAT has the right to require the Company to repurchase any or all of the Series D Equity SharesE Preferred Shares then held by the Trustee on behalf of WAT, (B) the date of repurchase (which shall be a Business DayDay (as defined in the Series E Certificate), no earlier than 30 days and no later than 60 days from the date such notice is mailed, or such later date as may be necessary to comply with the requirements of the Securities Exchange ActAct of 1934, as amended), (C) the repurchase price and (D) the instructions determined by the Company, consistent with this subsection, that such holder the Trustee must follow in order to have the Series D Equity E Preferred Shares repurchased. (d) On the REIT-Repurchase Date, the Company, to the extent lawful, shall accept for payment Series D Equity Shares E Preferred Stock or portions thereof tendered by the WHL Entities holders thereof pursuant to the REIT-Repurchase Offer and promptly, by wire transfer of immediately available funds to such holders, as directed by such holders, send an amount equal to the REIT-Repurchase Payment in respect of all Series D Equity SharesE Preferred Stock, or portions thereof so tendered. (e) Notwithstanding anything else hereinherein to the contrary, to the extent they are applicable to any REIT-Repurchase Offer, the Company will comply with any federal and state securities laws, rules and regulations and all time periods and requirements shall be adjusted accordingly.