Common use of Redemption Rights of Qualifying Parties Clause in Contracts

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 6 contracts

Samples: Contribution Agreement (City Office REIT, Inc.), Limited Partnership Agreement (City Office REIT, Inc.), Contribution Agreement (City Office REIT, Inc.)

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Redemption Rights of Qualifying Parties. A. After Commencing on the expiration of the Twelve-Month Period applicable Redemption Hold Periodto any Partnership Common Units, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) ), by delivering a Notice of Redemption to the Managing General Partner, to require the Partnership to redeem all or a portion of the such Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the Managing General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Twelve-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the Managing General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the Managing General Partner and the Special Limited Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Special Limited Partner notifies the Tendering Party that the General Special Limited Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the Managing General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Special Limited Partner may, in the General Partner’s its sole and absolute discretion discretion, but subject to the Ownership LimitLimit and the availability of authorized but unissued REIT Shares, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Special Limited Partner elects chooses to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Special Limited Partner shall give written notice thereof to the Managing General Partner and the Tendering Party on or before the close of business on the Cut-Off Date. If the General Special Limited Partner elects to acquire any of the Tendered Units for REIT Shares, the General Special Limited Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Special Limited Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal Federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Special Limited Partner in exchange for the REIT Shares Amount. If the General Special Limited Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Special Limited Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Special Limited Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Special Limited Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner Special Limited Partner, given on or before the close of business on the Cut-Off Date Date, that the General Special Limited Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which be acquired by the General Partner’s notice relates Special Limited Partner shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as Special Limited Partner, which shall be duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Special Limited Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Special Limited Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Special Limited Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Charter, the Securities Act and applicable state securities laws as the General Special Limited Partner in good faith determines to be necessary or advisable in order to ensure compliance with the Charter and such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights with respect to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Special Limited Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Special Limited Partner does not elect choose to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Special Limited Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Special Limited Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. Any proceeds from a public offering that are in excess of the Cash Amount shall be for the sole benefit of the Special Limited Partner. The General Special Limited Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Limited Partner Interest. Any such contribution shall entitle the General Special Limited Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Special Limited Partner shall not, under any circumstances, not elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Special Limited Partner’s Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, withoutunless, in each case, otherwise agreed to by the Consent of the Managing General PartnerPartner in its sole and absolute discretion. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Special Limited Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Special Limited Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Special Limited Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Special Limited Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Special Limited Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the Managing General Partner and the Special Limited Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its their knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, nor to the best of its knowledge, their knowledge any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and. (4) In connection with any Special Redemption, the General Special Limited Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Partnership, the Managing General Partner or the General Special Limited Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 6 contracts

Samples: Contribution Agreement (Welsh Property Trust, Inc.), Contribution Agreement (Welsh Property Trust, Inc.), Contribution Agreement (Welsh Property Trust, Inc.)

Redemption Rights of Qualifying Parties. A. After the expiration of the applicable Redemption Hold Fourteen-Month Period, a Qualifying Common Party shall have the right (subject to the terms and conditions set forth herein) (the “Common Redemption Right”) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such a Common Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Common Units”) in exchange (a “Common Redemption”) for the Common Unit Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Common Units at the request of the Holder thereof Qualifying Common Party prior to the end of the applicable Redemption Hold Fourteen-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Common Redemption shall be exercised pursuant to a Common Unit Notice of Redemption delivered to the General Partner by the Qualifying Common Party when exercising the Redemption right (the “Common Tendering Party”). The Partnership’s obligation to effect a Common Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Common Tendering Party that the General Partner it declines to acquire some or all of the Tendered Common Units under Section 15.1.B hereof following receipt of a Common Unit Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Common Redemption, the Common Unit Cash Amount shall be delivered as a certified or bank check payable to the Common Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that tenth (10th) Business Day following the date on which the General Partner may elect to cause receives a Common Unit Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountCommon Tendering Party. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Common Units from the Common Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Common Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Common Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Common Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Common Tendering Party’s exercise of its Common Redemption right Right with respect to such Tendered Common Units and (2) such transaction shall be treated, for federal Federal income tax purposes, as a transfer by the Common Tendering Party of such Tendered Common Units to the General Partner in exchange for the Common Unit REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Common Tendering Party shall sell such number of the Tendered Common Units to the General Partner in exchange for a number of REIT Shares equal to the product of the Common Unit REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Common Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, representations and investment letters, legal opinions or other instruments letters as reasonably necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Common Units by the General Partner pursuant to this Section 15.1.B, the Common Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Common Units and, upon notice to the Common Tendering Party by the General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the General Partner has elected to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Common Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Common Unit REIT Shares Amount and the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and, to the extent applicable, the Securities Act and relevant state securities or “blue sky” laws. Neither any Common Tendering Party whose Tendered Common Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Common Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Common Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Common Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Common Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Common Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Common Unit Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Common Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. Any proceeds from a public offering that are in excess of the Common Unit Cash Amount shall be for the sole benefit of the General Partner. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Common Unit Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Common Unit Cash Amount from the day after the Specified Redemption Date to and including the date on which the Common Unit Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Common Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Common Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Common Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Common Tendering Party owns holds (as a Common Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Common Tendering Party, withoutunless, in each case, the Consent of otherwise agreed to by the General PartnerPartner in its sole and absolute discretion. (3) If (i) a Common Tendering Party surrenders its Tendered Common Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Common Units in exchange for REIT Shares pursuant to Section 15.1.B, such Common Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Common Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Common Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Common Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Common Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof, the Common Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of the Common Redemption rights Right pursuant to this Section 15.1, except as otherwise Consented to agreed by the General Partner, in its sole and absolute discretion, the Common Tendering Party shall submit the following to the General Partner, in addition to the Common Unit Notice of Redemption: (1) A written affidavit, dated the same date as the Common Unit Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Common Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof, neither the Common Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Common Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Common Tendering Party and to the best of its their knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof, neither the Common Tendering Party nor, nor to the best of its knowledge, their knowledge any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and. (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Common Units to the Common Tendering Party or the issuance and sale of REIT Shares to the Common Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 4 contracts

Samples: Agreement of Limited Partnership (Hudson Pacific Properties, Inc.), Limited Partnership Agreement (Hudson Pacific Properties, Inc.), Limited Partnership Agreement (Hudson Pacific Properties, Inc.)

Redemption Rights of Qualifying Parties. A. After the expiration of the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) (the “Redemption Right”) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such a Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Common Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Common Units at the request of the Holder thereof Qualifying Party prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth hereinherein (including the expiration of the applicable Specified Redemption Date)) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Common Unit Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner it declines to acquire some or all of the Tendered Common Units under Section 15.1.B hereof following receipt of a Common Unit Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 3 contracts

Samples: Limited Partnership Agreement (Parking REIT, Inc.), Agreement of Limited Partnership (Parking REIT, Inc.), Merger Agreement (Mobile Infrastructure Corp)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Twelve-Month Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion (but not less than all) of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on as provided below; provided that a Qualifying Party may only deliver a Notice of Redemption, as provided below, at least ten (10) Business Days before the Specified last Business Day of a calendar month (with any late Notice of Redemption Datebeing null). The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Twelve-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner and the Special Limited Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner Partner, on behalf of the Partnership, notifies the Tendering Party that the General Partnership declines to cause the Special Limited Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as paid by a certified or bank check payable mailed to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available fundsby wire transfer, in each case, on or before the Specified Redemption Date; provided, however, that last Business Day of the month in which the General Partner may elect to cause receives a Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountTendering Party. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner Partnership may, in the General Partner’s sole and absolute discretion but subject to the Ownership LimitLimit and the transfer restrictions and other limitations of the Charter, elect to cause the Special Limited Partner to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT SharesShares (the percentage of such Tendered Units to be acquired by the Special Limited Partner in exchange for REIT Shares being referred to as the “Applicable Percentage”). If the General Partnership elects to cause the Special Limited Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner Partner, on behalf of the Partnership, shall give written notice thereof to the Special Limited Partner and the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partnership elects to cause the Special Limited Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall direct the Special Limited Partner to issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly Special Limited Partner’s issuance and delivery of the obligation with respect thereto and REIT Shares shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Special Limited Partner in exchange for the REIT Shares Amount. If the General Partner Partnership so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Special Limited Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Special Limited Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Special Limited Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner Partnership has elected to cause the Special Limited Partner to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Special Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and any other restrictions provided in the Charter, the Securities Act and relevant state securities or “blue sky” laws. Neither None of any Tendering Party whose Tendered Units are acquired by the General Special Limited Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor or any other interested Person shall have any right to require or cause the General Special Limited Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SECSEC under the Securities Act or the Exchange Act, with any stock exchange or with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Special Limited Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and and, if applicable, Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Special Limited Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership LimitCharter. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Special Limited Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner Partnership does not elect exercise its right to cause the Special Limited Partner to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Special Limited Partner to contribute to the Partnership funds from the proceeds of a registered public offering by the General Special Limited Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Special Limited Partner shall make a Capital Contribution of any such amounts of offering proceeds it may receive to the Partnership for an additional General Limited Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the first Business Day after the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day first Business Day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to cause the Special Limited Partner to acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Special Limited Partner’s Partnership Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Special Limited Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partnership elects to cause the Special Limited Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution Shares that relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (43) The consummation of such Redemption (or an acquisition of Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (54) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, Agreement until the Specified Redemption Date (and thereafter unless such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Special Limited Partner and paid for, for by the issuance of the REIT Shares, Shares pursuant to Section 15.1.B hereof on the Specified Redemption Datehereof). Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Special Limited Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their its knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their its knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, nor to the best of its knowledge, knowledge any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and. (4) In connection with any Special Redemption, the General Special Limited Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Partnership, the General Partner or the General Special Limited Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 3 contracts

Samples: Limited Partnership Agreement (Silver Bay Realty Trust Corp.), Limited Partnership Agreement (Silver Bay Realty Trust Corp.), Limited Partnership Agreement (Silver Bay Realty Trust Corp.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Fourteen-Month Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Fourteen-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. LTIP Unit Exception and Redemption of Partnership Common Units Issued Upon Conversion of LTIP Units. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 3 contracts

Samples: Agreement of Limited Partnership (Rexford Industrial Realty, Inc.), Limited Partnership Agreement (Rexford Industrial Realty, Inc.), Agreement of Limited Partnership (Rexford Industrial Realty, Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the applicable Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and such Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise all rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Partnership Common Units if the acquisition of such Partnership Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. LTIP Unit and Performance Unit Exception and Redemption of Partnership Common Units Issued Upon Conversion of LTIP Units. Holders of LTIP Units and Performance Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units or Performance Units, as applicable, have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Rexford Industrial Realty, Inc.), Agreement of Limited Partnership (Rexford Industrial Realty, Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Twelve-Month Period, a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem (a “Redemption”) all or a portion of the Partnership Common Units held by such Tendering Qualifying Party (such Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the such Qualifying Party when exercising the Redemption right (the “Tendering Party”)) when exercising the Redemption right. The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of until and unless there has been a Notice of Redemption Declination and (ii) before the Business Day following the Cut-Off Date. Regardless of the binding or non-binding nature of a pending Redemption, a Tendering Party shall have no right to receive distributions with respect to any Tendered Units (other than the Cash Amount) paid after delivery of the Notice of Redemption, whether or not the Partnership Record Date for such distribution precedes or coincides with such delivery of the Notice of Redemption; provided, however, that in the event that the General Partner on behalf of the Partnership elects to fund the Cash Amount with the proceeds of an Offering Funding pursuant to Section 8.6.D hereof, the Tendering Party’s right to receive distributions shall not be suspended as hereinbefore provided and such Tendering Party shall have the right to receive distributions actually made hereunder prior to the date of the closing of the Offering Funding the proceeds of which are used to pay the Cash Amount. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A 8.6.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership LimitLimit and the transfer restrictions and other limitations of the Charter, elect to acquire some or all of the Tendered Units from the Tendering Party (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for the REIT SharesConsideration. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.BIn making such election, the General Partner shall give written notice thereof to the Tendering Party on act in a fair, equitable and reasonable manner that neither prefers one group or before the close class of business on the Cut-Off Date. If the General Partner elects to acquire any Qualifying Parties over another nor discriminates against a group or class of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares AmountQualifying Parties. If the General Partner so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number the Applicable Percentage of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issuedConsideration. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the any Tendered Units by the General Partner pursuant to this Section 15.1.B8.6.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B8.6.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of The REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, Consideration shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Bylaws of the General Partner, the Securities Act and relevant state securities or “blue sky” laws. Neither Except as set forth in Section 8.8 below, neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B8.6.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B8.6.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B 8.6.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A 8.6.A and 15.1.B 8.6.B hereof, the no Tendering Parties Party shall have no any rights under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights with respect to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof would be in violation of this Section 15.1.C8.6.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A 8.6.B hereof. D. If In the event that the General Partner does not elect declines or fails to acquire the exercise its purchase rights for all Tendered Units pursuant to Section 15.1.B hereof:8.6.B hereof following receipt of a Notice of Redemption (a “Declination”): (1) The General Partner shall give notice of such Declination to the Tendering Party on or before the close of business on the Cut-Off Date. The failure of the General Partner to give notice of such Declination by the close of business on the Cut-Off Date shall itself constitute a Declination. (2) Subject to Section 11.6.D, the General Partner on behalf of the Partnership may elect to raise funds for the payment of all or any percentage of the Cash Amount either (a) by requiring that contribution by the General Partner contribute to the Partnership of funds from the proceeds of a private placement or registered public offering (each, an “Offering Funding”) by the General Partner of a number of REIT Shares sufficient to purchase or other securities of the Tendered Units REIT (“Offering Funding Shares”) or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. (3) If an Offering Funding has been elected by the General Partner, promptly upon the General Partner’s receipt of the Notice of Redemption and the General Partner giving notice of its Declination, the General Partner shall give notice (a “Single Funding Notice”) to all Qualifying Parties then holding a Partnership Interest (or an interest therein) and having Redemption rights pursuant to this Section 8.6 and require that all such Qualifying Parties elect whether or not to effect a Redemption of their Partnership Common Units to be funded through an Offering Funding. In the event that any such Qualifying Party elects to effect such a Redemption, it shall give notice thereof and of the number of Partnership Common Units to be made subject thereto in writing to the General Partner within ten (10) Business Days after receipt of the Single Funding Notice, and such Qualifying Party shall be treated as a Tendering Party for all purposes of this Section 8.6. In the event that a Qualifying Party does not so elect, it shall be deemed to have waived its right to effect a Redemption for the current Twelve-Month Period; provided, however, that the General Partner shall not be required to acquire Partnership Common Units pursuant to this Section 8.6.D more than twice within a calendar year. Any proceeds from an Offering Funding that are in excess of the aggregate Cash Amount paid to all Tendering Parties pursuant to this Section 8.6.D shall be for the sole benefit of the General Partner. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B 8.6.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for the REIT Shares Consideration if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 8.6.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B 8.6.B hereof) pursuant to this Section 15.18.6: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B 8.6.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand two hundred fifty (1,000250) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand two hundred fifty (1,000250) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Each Tendering Party surrenders (a) may effect a Redemption only once in each fiscal quarter of a Twelve-Month Period, unless otherwise permitted by the General Partner, in its Tendered Units sole and absolute discretion and (b) may not effect a Redemption during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) Notwithstanding anything herein to the contrary, with respect to any Redemption or acquisition of Tendered Units by the General Partner pursuant to Section 8.6.B hereof, in the event that the General Partner gives notice to all Limited Partners (but excluding any Assignees) then owning Partnership Interests (a “Primary Offering Notice”) that the General Partner desires to effect a primary offering of its equity securities, then, unless the General Partner otherwise consents, commencement of the actions denoted in Section 8.6.D hereof as to an Offering Funding, if any, with respect to any Notice of Redemption thereafter received, whether or not the Tendering Party is a Limited Partner, may be delayed until the earlier of (a) the completion of the primary offering or (b) ninety (90) days following the giving of the Primary Offering Notice. (5) Without the consent of the General Partner, no Tendering Party may effect a Redemption within ninety (90) days following the closing of any prior Offering Funding. (6) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (57) The Subject to Section 8.6.A, the Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions provision of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A 8.6.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of (8) Any Partnership Common Units tendered for Redemption rights pursuant to this Section 15.18.6 that are Paired Common Units shall include for all purposes under this Section 8.6, except the Special Voting Shares attached thereto as otherwise Consented to required by Section 8.9 below, Section 6.3.3 of the Charter and the applicable provisions of the Pairing Agreement. All Special Voting Shares acquired by the General Partner, the Tendering Party shall submit the following to the General Partner, Partnership in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge connection with any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered attached Paired Common Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at 8.6.A shall be cancelled and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) retired in accordance with their terms.Section 6.3.4

Appears in 2 contracts

Samples: Agreement of Limited Partnership (Hilltop Holdings Inc.), Limited Partnership Agreement (Affordable Residential Communities Inc)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Fourteen-Month Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Fourteen-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner and the Special Limited Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner Partner, on behalf of the Partnership, notifies the Tendering Party that the General Partnership has declined to elect to require the Special Limited Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that tenth (10th) Business Day following the date on which the General Partner may elect to cause receives a Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountTendering Party. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner Partnership may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to require the Special Limited Partner to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partnership elects to require the Special Limited Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner Partnership shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partnership elects to require the Special Limited Partner elects to acquire any of the Tendered Units for REIT Shares, the General Special Limited Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Special Limited Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Special Limited Partner in exchange for the REIT Shares Amount. If the General Partner Partnership so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Special Limited Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Special Limited Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Special Limited Partner’s view, to effect compliance with the Securities Act. In the event of a an election by the Partnership to require the Special Limited Partner to purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner Partnership given on or before the close of business on the Cut-Off Date that the General Partner Partnership has elected to require the Special Limited Partner to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Special Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Special Limited Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Special Limited Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Special Limited Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Special Limited Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Tendered Units or require the Special Limited Partner to acquire Tendered Units if such a redemption or the acquisition of such Common Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, to the fullest extent permitted by law, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Special Limited Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner Partnership does not elect to require the Special Limited Partner to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Special Limited Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Special Limited Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Special Limited Partner shall make a Capital Contribution of any such amounts to the Partnership in exchange for an additional General Partnership Units, and the Partnership is hereby authorized from time to time to issue such additional Partnership Units in consideration therefor without any further act, approval or vote of any Partner Interestor other Persons. Any such contribution shall entitle the General Special Limited Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Special Limited Partner shall not, under any circumstances, elect to not acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Special Limited Partner’s Partnership Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner, which may be given or withheld in its sole and absolute discretion. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Special Limited Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partnership elects to require the Special Limited Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Special Limited Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Special Limited Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Special Limited Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, in its sole and absolute discretion, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its their knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, nor to the best of its knowledge, their knowledge any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Special Limited Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Partnership, the General Partner or the General Special Limited Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to the Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Spirit Realty Capital, Inc.), Limited Partnership Agreement (Spirit Realty Capital, Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the applicable Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and such Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise all rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Partnership Common Units if the acquisition of such Partnership Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. LTIP Unit and Performance Unit Exception and Redemption of Partnership Common Units Issued Upon Conversion of LTIP Units. Holders of LTIP Units and Performance Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units or Performance Units, as applicable, have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Rexford Industrial Realty, Inc.), Limited Partnership Agreement (Rexford Industrial Realty, Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Period, a (a) A Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem exchange all or a portion of the Partnership Company Class A Common Units held by such Tendering Qualifying Party (Partnership Company Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) for the Class A Shares Amount or, at the sole and absolute election of the independent members of the Board of Directors (such independent members to be determined by the Board of Directors in exchange (a “Redemption”accordance with the New York Stock Exchange rules, or, identified as such in Genesis’ annual proxy statement) on behalf of the Managing Member, for the Cash Amount payable on the Specified Redemption Date. The Partnership mayDate (in each case, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, howeverin each case pursuant to, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemptionand in accordance with, the issuance Charter and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B provisions of this AgreementArticle XIV. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner Managing Member by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against In the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party event that the General Partner declines Managing Member elects to acquire some redeem all or all a portion of the Tendered Units under Section 15.1.B hereof in exchange for the applicable Cash Amount, then the Tendering Party shall have the right, at any time during the five (5) Business Days following receipt of a such election by the Managing Member, to rescind the Notice of Redemption pursuant to a written notice (the “Rescission Notice”) and (ii) retain its Company Class A Common Units or Company Class B Common Units, as applicable. If the Business Day following the Cut-Off Date. In the event of Tendering Party does not provide a RedemptionRescission Notice, the applicable Cash Amount shall be delivered by the Managing Member as a certified or bank check payable to the Tendering Party or, in the General PartnerManaging Member’s sole and absolute discretion, in immediately available funds, in each case, by wire transfer of funds on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding (b) If the provisions of Section 15.1.A hereof, Managing Member does not elect on or before the close of business on the Cut-Off DateDate to redeem all of the Tendered Units from the Tendering Party in exchange for the Cash Amount, then the General Partner may, portion of the Tendered Units not being redeemed for the Cash Amount shall be redeemed for the Class A Shares Amount calculated based on the portion of Tendered Units to be acquired in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all exchange for Class A Shares (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued). The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General PartnerManaging Member’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Class A Shares equal to the product of the Applicable Percentage and the REIT Class A Shares Amount, if applicable, shall be delivered by Genesis to the General Partner Managing Member for delivery to the Tendering Party as duly authorized, validly issued, fully paid and non-assessable REIT Class A Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than restrictions provided in the Ownership LimitCharter, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Class A Shares and Rights for all purposes, including, without limitation, including rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Class A Shares issued upon an acquisition of the Tendered Units by the General Partner in connection with a Redemption pursuant to this Section 15.1.B 14.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner Genesis in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1c) The Partnership Company may elect to raise funds for the payment of the any applicable Cash Amount either (ai) solely by requiring that the General Partner Genesis or its Subsidiaries contribute to the Partnership Company funds from (A) the proceeds of a registered public offering by the General Partner Genesis of REIT Class A Shares sufficient to purchase the Tendered Units or (bB) any other sources available to Genesis or its Subsidiaries or (ii) with the consent of the Tendering Party, from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the PartnershipCompany. The General Partner shall make To the extent determined by the Managing Member, the Company will treat such a Capital Contribution transaction as a disguised sale of any such amounts to the Partnership for an additional General Partner Interestpartnership interests under Code Section 707(a)(2)(B). Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. (d) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof)contrary, with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.114.1: (1i) All Partnership Common Units acquired by Without the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised consent of the same number of Partnership Common Units. (2) Subject to the Ownership LimitManaging Member, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Company Class A Common Units having a Value of at least $5,000,000 (as adjusted for any unit split, unit distribution, reverse unit split, reclassification or similar event, in each case with such adjustment being determined by the Managing Member) or, if such Tendering Party owns holds less than Company Class A Common Units having a Value of at least $5,000,000 (as a Limited Partner oradjusted for any unit split, economicallyunit distribution, as an Assignee) less than one thousand (1,000) Partnership Common Unitsreverse unit split, reclassification or similar event, in each case with such adjustment being determined by the Managing Member), all of the Partnership Company Class A Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3ii) If (iA) a Tendering Party surrenders its Tendered Units during the period after the Partnership Company Record Date with respect to a distribution payable to Holders of Company Common Units, and before the record date established by the General Partner Genesis for a distribution dividend to its stockholders of some or all of its portion of such Partnership Company distribution, and (iiB) the General Partner Managing Member, on behalf of Genesis, elects to acquire redeem any of such Tendered Units in exchange for REIT Class A Shares pursuant to Section 15.1.B14.1(b), then such Tendering Party shall pay to the General Partner Managing Member for payment to Genesis on the Specified Redemption Date an amount in cash equal to the portion of the Partnership Company distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units. (4iii) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (5iv) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof10.5) all Partnership Company Common Units subject to any Redemption, and be treated as a Limited Partner Non-Managing Member or an Assignee, as applicable, with respect to such Partnership Company Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption DateDate and until such Tendered Units are redeemed. Until a Specified Redemption Date and an acquisition a redemption of the Tendered Units by the General Partner pursuant to Section 15.1.B hereofManaging Member for the Class A Share Amount, the Tendering Party shall have no rights as a stockholder of the General Partner Genesis with respect to the REIT Class A Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except (v) The Managing Member shall establish one or more dates in each Fiscal Year as otherwise Consented to by a date on which the General Partner, the Tendering Qualifying Party shall submit the following be permitted to the General Partner, in addition to the deliver a Notice of Redemption:. The Managing Member may permit, in writing or orally, one or more Qualifying Parties to submit a Notice of Redemption on such other dates, such permission to be granted, withheld or granted on such terms and conditions as determined by the Managing Member in its sole discretion. (1e) A written affidavitNotwithstanding anything herein to the contrary, dated with respect to any Profits Interest Units, any Member may exchange such Profits Interest Units only to the extent such Member’s Adjusted Capital Account attributable to such Profits Interest Units at the time of the exchange represents the same date percentage of the aggregate Adjusted Capital Account balances of all Members of the Company as the Notice of Redemption, (apercentage interest represented by such Profits Interest Units to be exchanged. The determination in this Section 14.1(e) disclosing the actual and constructive ownership, shall be calculated as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) if each Excluded Asset had been contributed to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner Company pursuant to Section 15.1.B hereof3.9. For the avoidance of doubt, neither the Tendering Party nor exchanging Member may designate the portion of his or her Capital Account attributable to one or more Company Units being exchanged. (f) Upon redemption of any Class A Common Unit, the Company shall convert a number of Class C Common Units held by the Managing Member equal to the best number of their knowledge any Related Party will own REIT Class C Shares that were converted in violation connection with such Class A Common Unit redemption and issue to the Managing Member a number of Class A Units equal to the number of whole Class A Shares issued upon such conversion and pay to the Managing Member for payment to Genesis an amount in cash equal to the cash paid to holders of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best Class C Shares converted in lieu of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreementfractional shares. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 2 contracts

Samples: Limited Liability Company Operating Agreement (Genesis Healthcare, Inc.), Purchase and Contribution Agreement (Skilled Healthcare Group, Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold first Twelve-Month Period, a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Redeemable Units held by such Tendering Party (Partnership Common such Redeemable Units that have in fact been tendered for redemption being hereafter referred to as “"Tendered Units") in exchange (a "Redemption") for REIT shares issuable on, or the Cash Amount payable on on, the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause as determined by the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreementin its sole discretion. Any Redemption shall be exercised 47 pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the "Tendering Party"). The Partnership’s obligation A Tendering Party shall have no right to effect a receive distributions with respect to any Tendered Units (other than the Cash Amount) paid after delivery of the Notice of Redemption, however, shall whether or not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some Record Date for such distribution precedes or all coincides with such delivery of the Notice of Redemption. If the Partnership elects to redeem Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemptionfor cash, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s 's sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner Partnership elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the redeem Tendered Units for REIT SharesShares rather than cash, then the Partnership shall direct the Previous General Partner shall to issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of set forth in this Section 15.1.B8.6.B, in which case case, (1i) the Previous General Partner Partner, acting as a distinct legal entity, shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s 's exercise of its Redemption right with respect to such Tendered Units right, and (2ii) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the Previous General Partner in exchange for REIT shares. The percentage of the Tendered Units tendered for Redemption by the Tendering Party for which the Partnership elects to cause the Previous General Partner to issue REIT Shares Amount(rather than cash) is referred to as the "Applicable Percentage." In making such election to cause the Previous General Partner to acquire Tendered Units, the Partnership shall act in a fair, equitable and reasonable manner that neither prefers one group or class of Qualifying Parties over another nor discriminates against a group or class of Qualifying Parties. If the General Partner so electsPartnership elects to redeem any number of Tendered Units for REIT Shares, rather than cash, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the Previous General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the Previous General Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the Previous General Partner’s 's view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the The product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the Previous General Partner as duly authorized, validly issued, fully paid and non-assessable accessible REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Bylaws of the Previous General Partner, the Securities Act and relevant state securities or "blue sky" laws. Neither any Tendering Party whose Tendered Units are acquired by the Previous General Partner pursuant to this Section 15.1.B8.6.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the Previous General Partner or the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B8.6.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the Previous General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the Previous General Partner pursuant to this Section 15.1.B 8.6.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the Previous General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A 8.6.A and 15.1.B 8.6.B hereof, the Tendering Parties (i) where the Redemption would consist of less than all the Partnership Common Units held by Partners other than the General Partner and the Special Limited Partner, shall not be entitled to elect or effect a Redemption to the extent that the aggregate Percentage Interests of the Limited Partners (other than the Special Limited Partner) would be reduced, as a result of the Redemption, to less than one percent (1%) and (ii) shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Aimco Properties Lp), Limited Partnership Agreement (Aimco Properties Lp)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold PeriodSubject to any Non-Managing Member Ancillary Agreement, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership Company to redeem all or a portion of the Partnership Membership Common Units held by such Tendering Qualifying Party (Partnership Membership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner Managing Member by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The PartnershipCompany’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of Company (i) the date the General Partner notifies the Tendering Party that the General Partner until and unless CLNS Credit declines or fails to acquire some or all of the Tendered Units under exercise its purchase rights pursuant to Section 15.1.B hereof following receipt of a Notice of Redemption (a “Declination”) and (ii) unless CLNS Credit agrees otherwise, until the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General PartnerManaging Member’s sole and absolute discretion, in immediately available funds, in each case, funds on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner CLNS Credit may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, (the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any percentage of the Tendered Units for REIT Sharesso elected to be acquired, the General Partner shall issue and deliver such REIT Shares to “Applicable Percentage”) from the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the product of the REIT Shares AmountAmount and the Applicable Percentage. If the General Partner CLNS Credit so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Partner CLNS Credit in exchange for a number of Class A REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner CLNS Credit may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General PartnerCLNS Credit’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner CLNS Credit pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership Company to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner CLNS Credit, given on or before the close of business on the Cut-Off Date Date, that the General Partner CLNS Credit has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership Company to effect a Redemption of the Tendered Units as to which the General PartnerCLNS Credit’s notice relates shall not accrue or arise. A number of Class A REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner CLNS Credit as duly authorized, validly issued, fully paid and non-assessable Class A REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Securities Act and relevant state securities or “blue sky” laws. If the amount of Class A REIT Shares to be issued in exchange for the Tendered Units is not a whole number of Class A REIT Shares, the Tendering Party shall be paid (i) that number of Class A REIT Shares that equals the nearest whole number less than such amount plus (ii) an amount of cash that CLNS Credit determines, in its reasonable discretion, to represent the fair value of the remaining fractional Class A REIT Share that would otherwise be payable to the Tendering Party. Neither any Tendering Party whose Tendered Units are acquired by the General Partner CLNS Credit pursuant to this Section 15.1.B, any PartnerMember, any Assignee nor any other interested Person shall have any right to require or cause the General Partner CLNS Credit to register, qualify or list any Class A REIT Shares owned or held by such Person, whether or not such Class A REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement (including any Non-Managing Member Ancillary Agreement) between the General Partner CLNS Credit and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such Class A REIT Shares and Rights for all purposes, including, without limitation, including rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. Class A REIT Shares issued upon an acquisition of the Tendered Units by the General Partner CLNS Credit pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner CLNS Credit in good faith determines to be necessary or advisable in order to ensure compliance with such lawslaws and the Charter. C. Notwithstanding the provisions of Section 15.1.A Sections 15.1.A, 15.1.B and 15.1.B 15.1.J hereof, (i) no Person shall be entitled to effect a Redemption for cash or an exchange for Class A REIT Shares to the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by extent the Charter and shall have no rights ownership or right to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner acquire Class A REIT Shares pursuant to Section 15.1.B hereof would such exchange on the Specified Redemption Date could cause any such Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.Bany other Person) to violate the Ownership Limit. To the extent that , after giving effect to any attempted Redemption waivers or acquisition modifications of the Tendered Units such restrictions by the General Partner pursuant to Section 15.1.B hereof would be in violation Board of this Section 15.1.C, it shall be null and void ab initioDirectors, and (ii) no Person shall have any rights under this Agreement to acquire Class A REIT Shares which would otherwise be prohibited under the Charter, after giving effect to any waivers or modifications of such restrictions by the Board of Directors. D. In the event of a Declination: (1) CLNS Credit shall give notice of such Declination to the Tendering Party shall not acquire any rights on or economic interests in REIT Shares otherwise issuable before the close of business on the Cut-Off Date. The failure of CLNS Credit to give notice of such Declination by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If close of business on the General Partner does not elect Cut-Off Date shall be deemed to be an election by CLNS Credit to acquire the Tendered Units pursuant to Section 15.1.B hereof:in exchange for REIT Shares. (12) The Partnership Company may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner CLNS Credit contribute to the Partnership Company funds from the proceeds of a registered public offering by the General Partner CLNS Credit of Class A REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, including the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustmentCompany. (23) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B hereof or Section 15.1.J hereof, the General Partner shall not, under any circumstances, elect to acquire any if CLNS Credit’s acquisition of Tendered Units in exchange for the REIT Shares if such acquisition Amount would be prohibited under the Charter, then (i) CLNS Credit shall not elect to acquire such Tendered Units, and (ii) the Company shall not be obligated to effect a Redemption of such Tendered Units. For the avoidance of doubt, unless CLNS Credit’s acquisition of Tendered Units in exchange for the REIT Shares Amount would be prohibited under the Charter, if Tendered Units are not exchanged for Class A REIT Shares, then the Cash Amount will be paid to the Tendering Party in accordance with the terms of Section 15.1.A hereof. F. Each Non-Managing Member covenants and agrees that all Membership Common Units delivered for redemption shall be delivered to the Company or CLNS Credit, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither CLNS Credit nor the Company shall be under any obligation to acquire Membership Common Units that are or may be subject to any liens. Each Non-Managing Member further agrees that, if any stamp, recording, documentary or similar tax is payable with respect to the Membership Common Units as a result of the transfer thereof to the Company or the CLNS Credit, such Tendering Party shall assume and pay such tax. G. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Membership Common Units for Redemption if the Tendered Units are acquired by the General Partner CLNS Credit pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by Without the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised consent of the same number of Partnership Common Units. (2) Subject to the Ownership LimitManaging Member, no Tendering Party may effect a Redemption for less than one thousand Five Hundred (1,000500) Partnership Membership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) holds less than one thousand Five Hundred (1,000500) Partnership Membership Common Units, all of the Partnership Membership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (32) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Company Record Date with respect to a distribution payable to Holders of Membership Common Units, and before the record date established by the General Partner CLNS Credit for a distribution dividend to its stockholders of some or all of its portion of such Partnership Company distribution, and (ii) the General Partner elects to acquire CLNS Credit acquires any of such Tendered Units in exchange for Class A REIT Shares pursuant to Section 15.1.B15.1.B on or before the record date for CLNS Credit dividends, then such Tendering Party shall pay to the General Partner CLNS Credit on the Specified Redemption Date an amount in cash equal to the portion of the Partnership Company distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units acquired by CLNS Credit. (43) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner CLNS Credit pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976. (54) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Membership Common Units subject to any Redemption, and be treated as a Limited Partner Member or an Assignee, as applicable, with respect to such Partnership Membership Common Units for all purposes of this Agreement, until the Specified Redemption Date and until such Partnership Common Tendered Units are either paid for by the Partnership Company pursuant to Section 15.1.A hereof or transferred to the General Partner CLNS Credit and paid for, by the issuance of the Class A REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. 15.1.B. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner CLNS Credit pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner CLNS Credit with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant H. If CLNS Credit shall be a party to this Section 15.1any Transaction, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation each Membership Common Unit that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have is not converted into the right to receive an opinion cash, securities or other property or any combination thereof in connection with such Transaction shall thereafter be convertible into the kind and amount of counsel reasonably satisfactory to it to cash, securities or other property or any combination thereof receivable upon the effect consummation of such Transaction by a holder of that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale number of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.into

Appears in 2 contracts

Samples: Master Combination Agreement (Colony NorthStar, Inc.), Master Combination Agreement (NorthStar Real Estate Income II, Inc.)

Redemption Rights of Qualifying Parties. A. In addition to the rights afforded to a Partnership Interest in a Unit Designation: (a) After the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Qualifying Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B 15.1(b) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B 15.1(b) hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 sixty (60) Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. (b) Notwithstanding the provisions of Section 15.1.A 15.1(a) hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B15.1(b), in which case (1i) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2ii) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares AmountXxxxxx Xxxxxx. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 sixty (60) Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (iA) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (iiB) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B15.1(b), the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B15.1(b), any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B15.1(b), with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and such Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise all rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B 15.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. (c) Notwithstanding the provisions of Section 15.1.A 15.1(a) and 15.1.B 15.1(b) hereof, the : (i) The Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Partnership Common Units if the acquisition of such Partnership Common Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof would be in violation of this Section 15.1.C15.1(c)(i), to the fullest extent permitted by law, it shall be null and void ab initiovoid, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B 15.1(b) hereof or cash otherwise payable under Section 15.1.A 15.1(a) hereof. D. (ii) No Tendering Party may deliver a Notice of Redemption during the period from December 15 of any year through January 15 of the following year. (d) If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B 15.1(b) hereof: (1i) The Partnership may elect to raise funds for the payment of the Cash Amount either (aA) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (bB) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. Without limiting Section 15.1(h) hereof, any proceeds from a public offering that are in excess of the Cash Amount shall be for the sole benefit of the General Partner. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustmentin accordance with Section 4.3(e). (2ii) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. (e) Notwithstanding the provisions of Section 15.1.B 15.1(b) hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. (f) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 15.1(c) hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B 15.1(b) hereof) pursuant to this Section 15.1: (1i) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B 15.1(b) hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2ii) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3iii) If (iA) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (iiB) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B15.1(b), such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4iv) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5v) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A 15.1(a) hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. (g) In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1i) A written affidavit, dated the same date as the Notice of Redemption, (aA) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (iI) such Tendering Party and (iiII) to the best of their knowledge any Related Party and (bB) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2ii) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date; (3iii) An undertaking to certify, at and as a condition of the closing of (iA) the Redemption or (iiB) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date, that either (aI) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(115.1(g)(i) or (bII) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4iv) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B 15.1(b) of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Lineage, Inc.), Limited Partnership Agreement (Lineage, Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold first Twelve-Month Period, a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Redeemable Units held by such Tendering Party (Partnership Common such Redeemable Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for REIT Shares issuable on, or the Cash Amount payable on on, the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause as determined by the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreementin its sole discretion. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation A Tendering Party shall have no right to effect a receive distributions with respect to any Tendered Units (other than the Cash Amount) paid after delivery of the Notice of Redemption, however, shall whether or not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some Record Date for such distribution precedes or all coincides with such delivery of the Notice of Redemption. If the Partnership elects to redeem Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemptionfor cash, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner Partnership elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the redeem Tendered Units for REIT SharesShares rather than cash, then the Partnership shall direct the Previous General Partner shall to issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of set forth in this Section 15.1.B8.6B, in which case case, (1i) the Previous General Partner Partner, acting as a distinct legal entity, shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units right, and (2ii) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the Previous General Partner in exchange for REIT Shares. The percentage of the Tendered Units tendered for Redemption by the Tendering Party for which the Partnership elects to cause the Previous General Partner to issue REIT Shares Amount(rather than cash) is referred to as the “Applicable Percentage.” In making such election to cause the Previous General Partner to acquire Tendered Units, the Partnership shall act in a fair, equitable and reasonable manner that neither prefers one group or class of Qualifying Parties over another nor discriminates against a group or class of Qualifying Parties. If the General Partner so electsPartnership elects to redeem any number of Tendered Units for REIT Shares, rather than cash, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the Previous General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the Previous General Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the Previous General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the The product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the Previous General Partner as duly authorized, validly issued, fully paid and non-assessable accessible REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Bylaws of the Previous General Partner, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the Previous General Partner pursuant to this Section 15.1.B8.6B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the Previous General Partner or the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B8.6B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the Previous General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the Previous General Partner pursuant to this Section 15.1.B 8.6B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the Previous General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A 8.6A and 15.1.B 8.6B hereof, the Tendering Parties (i) where the Redemption would consist of less than all the Partnership Common Units held by Partners other than the General Partner and the Special Limited Partners, shall not be entitled to elect or effect a Redemption to the extent that the aggregate Percentage Interests of the Limited Partners (other than the Special Limited Partners) would be reduced, as a result of the Redemption, to less than one percent (1%) and (ii) shall have no rights under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership LimitCharter. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C8.6C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the Previous General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A 8.6B hereof. D. If In the event that the Partnership declines to cause the Previous General Partner to acquire all of the Tendered Units from the Tendering Party in exchange for REIT Shares pursuant to Section 8.6B hereof following receipt of a Notice of Redemption (a “Declination”): (1) The Previous General Partner or the General Partner does not elect shall give notice of such Declination to acquire the Tendered Units pursuant to Section 15.1.B hereof:Tendering Partner on or before the close of business on the Cut-Off Date. (12) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership such funds from the proceeds of a registered public offering (a “Public Offering Funding”) by the Previous General Partner of a number of REIT Shares sufficient (“Registrable Shares”) equal to purchase the REIT Shares Amount with respect to the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The . (3) Promptly upon the General Partner’s receipt of the Notice of Redemption and the Previous General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle or the General Partner to an equitable Percentage Interest adjustment. (2) If giving notice of the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereofPartnership’s Declination, the General Partner shall not, under any circumstances, elect give notice (a “Single Funding Notice”) to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of all Qualifying Parties then holding a Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may beinterest therein) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of having Redemption rights pursuant to this Section 15.1, except as otherwise Consented 8.6 and require that all such Qualifying Parties elect whether or not to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best effect a Redemption of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or to be funded through such Public Offering Funding. In the event that any other class or series such Qualifying Party elects to effect such a Redemption, it shall give notice thereof and of the number of Partnership Common Units entitled to be made subject thereon in writing to the General Partner within ten (10) Business Days after receipt of the Single Funding Notice, and such right Qualifying Party shall be treated as a Tendering Party for all purposes of Redemption) in accordance with their terms.this

Appears in 2 contracts

Samples: Limited Partnership Agreement (Aimco Properties L.P.), Limited Partnership Agreement (Apartment Income REIT, L.P.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the applicable Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and such Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise all rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. LTIP Unit and Performance Unit Exception and Redemption of Partnership Common Units Issued Upon Conversion of LTIP Units. Holders of LTIP Units and Performance Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units or Performance Units, as applicable, have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Rexford Industrial Realty, Inc.), Limited Partnership Agreement (Rexford Industrial Realty, Inc.)

Redemption Rights of Qualifying Parties. A. (a) After the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership Company to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership Company may, in the General PartnerManaging Member’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner Managing Member first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Company or the General Partner Managing Member to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B 15.1(b) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner Managing Member by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The PartnershipCompany’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership Company until the earlier of (i) the date the General Partner Managing Member notifies the Tendering Party that the General Partner Managing Member declines to acquire some or all of the Tendered Units under Section 15.1.B 15.1(b) hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General PartnerManaging Member’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner Managing Member may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner Managing Member to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. (b) Notwithstanding the provisions of Section 15.1.A 15.1(a) hereof, on or before the close of business on the Cut-Off Date, the General Partner Managing Member may, in the General PartnerManaging Member’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner Managing Member elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the General Partner Managing Member shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner Managing Member elects to acquire any of the Tendered Units for REIT Shares, the General Partner Managing Member shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B15.1(b), in which case (1i) the General Partner Managing Member shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2ii) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner Managing Member in exchange for the REIT Shares Amount. If the General Partner Managing Member so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner Managing Member in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner Managing Member may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner Managing Member to cause additional REIT Shares to be issued. The Tendering Party shall submit (iA) such information, certification or affidavit as the General Partner Managing Member may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (iiB) such written representations, investment letters, legal opinions or other instruments necessary, in the General PartnerManaging Member’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner Managing Member pursuant to this Section 15.1.B15.1(b), the Tendering Party shall no longer have the right to cause the Partnership Company to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner Managing Member given on or before the close of business on the Cut-Off Date that the General Partner Managing Member has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the obligation of the Partnership Company to effect a Redemption of the Tendered Units as to which the General PartnerManaging Member’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner Managing Member as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner Managing Member pursuant to this Section 15.1.B15.1(b), any PartnerMember, any Assignee nor any other interested Person shall have any right to require or cause the General Partner Managing Member to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B15.1(b), with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner Managing Member and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner Managing Member pursuant to this Section 15.1.B 15.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner Managing Member determines to be necessary or advisable in order to ensure compliance with such laws. C. (c) Notwithstanding the provisions of Section 15.1.A 15.1(a) and 15.1.B 15.1(b) hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership Company to redeem Common Units if the acquisition of such Common Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof would be in violation of this Section 15.1.C15.1(c), to the fullest extent permitted by law, it shall be null and void ab initiovoid, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner Managing Member under Section 15.1.B 15.1(b) hereof or cash otherwise payable under Section 15.1.A 15.1(a) hereof. D. (d) If the General Partner Managing Member does not elect to acquire the Tendered Units pursuant to Section 15.1.B 15.1(b) hereof: (1i) The Partnership Company may elect to raise funds for the payment of the Cash Amount either (aA) by requiring that the General Partner Managing Member contribute to the Partnership Company funds from the proceeds of a registered public offering by the General Partner Managing Member of REIT Shares sufficient to purchase the Tendered Units or (bB) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the PartnershipCompany. Any proceeds from a public offering that are in excess of the Cash Amount shall be for the sole benefit of the Managing Member. The General Partner Managing Member shall make a Capital Contribution of any such amounts to the Partnership Company for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Managing Member Interest adjustmentin accordance with Section 4.3(e). (2ii) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. (e) Notwithstanding the provisions of Section 15.1.B 15.1(b) hereof, the General Partner Managing Member shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. (f) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 15.1(c) hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof) pursuant to this Section 15.1: (1i) All Partnership Common Units acquired by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Managing Member Interest comprised of the same number of Partnership Common Units. (2ii) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner Member or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General PartnerManaging Member. (3iii) If (iA) a Tendering Party surrenders its Tendered Units during the period after the Partnership Company Record Date with respect to a distribution and before the record date established by the General Partner Managing Member for a distribution to its stockholders of some or all of its portion of such Partnership Company distribution, and (iiB) the General Partner Managing Member elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B15.1(b), such Tendering Party shall pay to the General Partner Managing Member on the Specified Redemption Date an amount in cash equal to the portion of the Partnership Company distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4iv) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the XxxxHaxx-Xxxxx-Xxxxxx ActXct. (5v) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner Member or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership Company pursuant to Section 15.1.A 15.1(a) hereof or transferred to the General Partner Managing Member and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof, the Tendering Party shall have no rights as a stockholder of the General Partner Managing Member with respect to the REIT Shares issuable in connection with such acquisition. G. (g) In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General PartnerManaging Member, the Tendering Party shall submit the following to the General PartnerManaging Member, in addition to the Notice of Redemption: (1i) A written affidavit, dated the same date as the Notice of Redemption, (aA) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (iI) such Tendering Party and (iiII) to the best of their knowledge any Related Party and (bB) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2ii) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date; (3iii) An undertaking to certify, at and as a condition of the closing of (iA) the Redemption or (iiB) the acquisition of Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date, that either (aI) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(115.1(g)(i) or (bII) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4iv) In connection with any Special Redemption, the General Partner Managing Member shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Company or the General Partner Managing Member to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B 15.1(b) of this Agreement. H. (h) Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Kimco Realty OP, LLC), Limited Liability Company Agreement (Kimco Realty Corp)

Redemption Rights of Qualifying Parties. A. After the Twelve-Month Period applicable Redemption Hold Periodto such Partnership Common Units, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Twelve-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); providedprovided that, howeverunless waived by the Special Limited Partner, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) until and unless the date the General Partner notifies the Tendering Party that the General Special Limited Partner declines or fails to acquire some or all of the Tendered Units under exercise its purchase rights pursuant to Section 15.1.B hereof following receipt of a Notice of Redemption (a “Declination”) and (ii) until the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, funds on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Special Limited Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for the REIT Shares Amount calculated based on the portion of Tendered Units it elects to acquire in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Special Limited Partner so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Special Limited Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Special Limited Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Special Limited Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner Special Limited Partner, given on or before the close of business on the Cut-Off Date Date, that the General Special Limited Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Special Limited Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Special Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Special Limited Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Special Limited Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Special Limited Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Special Limited Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A Sections 15.1.A, 15.1.B and 15.1.B 15.1.H hereof, (i) no Person shall be entitled to effect a Redemption for cash or an exchange for REIT Shares to the Tendering Parties extent the ownership or right to acquire REIT Shares pursuant to such exchange on the Specified Redemption Date could cause such Person (or any other Person) to violate the restrictions on ownership and transfer of REIT Shares set forth in the Charter, after giving effect to any waivers or modifications of such restrictions by the Board of Directors, and (ii) no Person shall have no any rights under this Agreement that to acquire REIT Shares which would otherwise be prohibited under the Charter, after giving effect to any waivers or modifications of such restrictions by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition Board of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership LimitDirectors. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in the Cash Amount otherwise payable upon such Redemption or the REIT Shares otherwise issuable by the General Special Limited Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If In the General event of a Declination: (1) The Special Limited Partner does not elect shall give notice of such Declination to the Tendering Party on or before the close of business on the Cut-Off Date. The failure of the Special Limited Partner to give notice of such Declination by the close of business on the Cut-Off Date shall be deemed to be an election by the Special Limited Partner to acquire the Tendered Units pursuant to Section 15.1.B hereof:in exchange for REIT Shares. (12) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Special Limited Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Special Limited Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (23) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B hereof or Section 15.1.H hereof, if the General Partner shall not, under any circumstances, elect to acquire any Special Limited Partner’s acquisition of Tendered Units in exchange for the REIT Shares if such acquisition Amount would be prohibited under the Charter, then (i) the Special Limited Partner shall not elect to acquire such Tendered Units, and (ii) the Partnership shall not be obligated to effect a Redemption of such Tendered Units. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by Without the consent of the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership LimitPartner, no Tendering Party may effect a Redemption for less than one two thousand (1,0002,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) holds less than one two thousand (1,0002,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (32) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution payable to Holders of Partnership Common Units, and before the record date established by the General Special Limited Partner for a distribution dividend to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Special Limited Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, then such Tendering Party shall pay to the General Special Limited Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units. (43) The consummation of such Redemption (or an acquisition of Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (54) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until the Specified Redemption Date and until such Partnership Common Tendered Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Special Limited Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. 15.1.B. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Special Limited Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to unless waived by the General Special Limited Partner, the Tendering Party shall submit the following to the General Special Limited Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge such Tendering Party’s knowledge, any Related Party Party, and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor nor, to the best of their knowledge such Tendering Party’s knowledge, any Related Party Party, will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor nor, to the best of its knowledge such Tendering Party’s knowledge, any Related Party Party, has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and and, to the best of its knowledge such Tendering Party’s knowledge, any Related Party Party, remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) ), or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its such Tendering Party’s knowledge, any other Person Related Party, shall own REIT Shares in violation of the Ownership Limit; and. (4) In connection with any Special Redemption, the General Special Limited Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Partnership, the General Partner or the General Special Limited Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party Redemption or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Avenue N Holdings LLC), Agreement of Limited Partnership (CareTrust REIT, Inc.)

Redemption Rights of Qualifying Parties. A. (a) After the expiration or earlier termination of any applicable Redemption Hold Lock-Up Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem exchange all or a portion of the Partnership Class A Common Units held by such Tendering Qualifying Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Class A Shares Amount or, at the sole and absolute election of the General Partner, for the Cash Amount payable on the Specified Redemption DateDate (in each case, a “Redemption”), in each case pursuant to, and in accordance with, the Charter and the provisions of this Article XIV. The Notwithstanding the foregoing, the Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the any applicable Redemption Hold Lock-Up Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, provided that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B of this Agreement14.1(e). Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against In the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party event that the General Partner declines elects to acquire some redeem all or all a portion of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) in exchange for the Business Day following the Cut-Off Date. In the event of a Redemptionapplicable Cash Amount, the such applicable Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, by wire transfer of funds on or before the Specified Redemption Date; provided, however, that . (b) If the General Partner may does not elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off DateDate to redeem all of the Tendered Units from the Tendering Party in exchange for the Cash Amount, then the General Partner may, portion of the Tendered Units not being redeemed for the Cash Amount shall be redeemed for the Class A Shares Amount calculated based on the portion of Tendered Units to be acquired in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all exchange for Class A Shares (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued). The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Special Limited Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Class A Shares equal to the product of the Applicable Percentage and the REIT Class A Shares Amount, if applicable, shall be delivered by the General Special Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Class A Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than restrictions provided in the Ownership LimitCharter, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Class A Shares and Rights for all purposes, including, without limitation, including rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Class A Shares issued upon an acquisition of the Tendered Units by the General Partner in connection with a Redemption pursuant to this Section 15.1.B 14.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Special Limited Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1c) The Partnership may elect to raise funds for the payment of the any applicable Cash Amount either (a) solely by requiring that the General Special Limited Partner or its Subsidiaries contribute to the Partnership funds from (i) the proceeds of a registered public offering by the General Special Limited Partner of REIT Class A Shares sufficient to purchase the Tendered Units or (ii) any other sources available to the Special Limited Partner or its Subsidiaries or (b) with the consent of the Tendering Party, from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The To the extent determined by the General Partner shall make a Capital Contribution of any such amounts to Partner, the Partnership for an additional General Partner Interestwill treat such a transaction as a disguised sale under Code section 707(a)(2)(B). Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. (d) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof)contrary, with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.114.1: (1i) All Partnership Common Units acquired by Without the consent of the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership LimitPartner, no Tendering Party may effect a Redemption for less than one thousand [·] (1,000[·]) Partnership Class A Common Units (as adjusted for any unit split, unit distribution, reverse unit split, reclassification or similar event, in each case with such adjustment being determined by the General Partner) or, if such Tendering Party owns holds less than [·] ([·]) Partnership Class A Common Units (as a Limited Partner oradjusted for any unit split, economicallyunit distribution, as an Assignee) less than one thousand (1,000) Partnership Common Unitsreverse unit split, reclassification or similar event, in each case with such adjustment being determined by the General Partner), all of the Partnership Class A Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3ii) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution payable to Holders of Partnership Common Units, and before the record date established by the General Special Limited Partner for a distribution dividend to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Special Limited Partner elects to acquire redeem any of such Tendered Units in exchange for REIT Class A Shares pursuant to Section 15.1.B14.1(b), then such Tendering Party shall pay to the General Special Limited Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units. (4iii) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (5iv) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof10.5) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption DateDate and until such Tendered Units are redeemed. Until a Specified Redemption Date and an acquisition a redemption of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereoffor the Class A Share Amount, the Tendering Party shall have no rights as a stockholder of the General Special Limited Partner with respect to the REIT Class A Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except (v) The General Partner shall establish one or more dates in each fiscal year as otherwise Consented to by a date on which the General Partner, the Tendering Qualifying Party shall submit the following be permitted, subject to the General Partnerexpiration or earlier termination of any applicable Lock-Up Period, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the deliver a Notice of Redemption, (a) disclosing provided that the actual General Partner may postpone any such date one or more times. The General Partner may permit, in writing or orally, one or more Qualifying Parties to submit a Notice of Redemption on such other dates, such permission to be granted, withheld or granted on such terms and constructive ownership, conditions as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit;its sole discretion. (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4e) In connection with any Special Redemption, the General Special Limited Partner shall have the right to receive an opinion of counsel for the Tendering Party reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Partnership, the General Partner or the General Special Limited Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party Redemption or the issuance and sale of REIT Class A Shares to the Tendering Party pursuant to Section 15.1.B 14.1(b) of this Agreement. H. Holders (f) If the General Partner permits a Special Redemption with respect to Partnership Class A Common Units held by Xxxxxxx Xxxxxx or any of LTIP Units shall not his Family Members to be entitled effected prior to the end of the applicable Lock-Up Period, each other Qualifying Party shall have the right to have the same ratable share of its Partnership Class A Common Units redeemed in a Special Redemption provided for in Section 15.1 on the same date as the Special Redemption of this Agreementthe Partnership Class A Common Units held by Xxxxxxx Xxxxxx or his applicable Family Member. (g) Notwithstanding anything herein to the contrary, unless and until such LTIP Units have been converted into any Partner may exchange Partnership Common Units (or any other class or series only to the extent such Partner’s Adjusted Capital Account at the time of the exchange represents at least the same percentage of the aggregate Adjusted Capital Account balances of all partners of the Partnership as the percentage interest represented by such Partnership Common Units entitled to such right be exchanged. For the avoidance of Redemption) in accordance with their termsdoubt, the exchanging Partner may designate the portion of his or her Capital Account attributable to one or more Partnership Common Units being exchanged.

Appears in 2 contracts

Samples: Agreement of Limited Partnership (Moelis & Co), Agreement of Limited Partnership (Moelis & Co)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold first Twelve-Month Period, a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Redeemable Units held by such Tendering Party (Partnership Common such Redeemable Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for REIT Shares issuable or the Cash Amount payable (as determined by the Partnership in its sole discretion) on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a RedemptionTo be effective, however, shall not arise or such Notice of Redemption must be binding against received by the Partnership until at least forty-five (45) days prior to the earlier Specified Redemption Date. On or before the close of (i) business on the date Cut-Off Date, the Partnership may, in its sole and absolute discretion, elect to cause the Previous General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under from the Tendering Party in exchange for REIT Shares pursuant to the terms set forth in Section 15.1.B hereof following receipt 8.6B. A Tendering Party shall have no right to receive distributions with respect to any Tendered Units (other than the Cash Amount) paid after delivery of a the Notice of Redemption and (ii) Redemption, whether or not the Business Day following Partnership Record Date for such distribution precedes or coincides with such delivery of the Cut-Off DateNotice of Redemption. In If the event of a RedemptionPartnership elects to redeem Tendered Units for cash, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner Partnership elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the redeem Tendered Units for REIT SharesShares rather than cash, then the Partnership shall direct the Previous General Partner shall to issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of set forth in this Section 15.1.B8.6B, in which case case, (1i) the Previous General Partner Partner, acting as a distinct legal entity, shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units right, and (2ii) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the Previous General Partner in exchange for REIT Shares. The percentage of the Tendered Units tendered for Redemption by the Tendering Party for which the Partnership elects to cause the Previous General Partner to issue REIT Shares Amount(rather than cash) is referred to as the “Applicable Percentage.” In making such election to cause the Previous General Partner to acquire Tendered Units, the Partnership shall act in a fair, equitable and reasonable manner that neither prefers one group or class of Qualifying Parties over another nor discriminates against a group or class of Qualifying Parties. If the General Partner so electsPartnership (i) elects to redeem any number of Tendered Units for REIT Shares, rather than cash, on the Specified Redemption Date, or (ii) elects to cause the Previous General Partner to acquire any number of Tendered Units for REIT Shares on or before the close of business on the Cut-Off Date, in each case, the Tendering Party shall sell such number of the Tendered Units to the Previous General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the Previous General Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the Previous General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the The product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the Previous General Partner as duly authorized, validly issued, fully paid and non-assessable accessible REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Bylaws of the Previous General Partner, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the Previous General Partner pursuant to this Section 15.1.B8.6B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the Previous General Partner or the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B8.6B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the Previous General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the Previous General Partner pursuant to this Section 15.1.B 8.6B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the Previous General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A 8.6A and 15.1.B 8.6B hereof, the Tendering Parties (i) where the Redemption would consist of less than all the Partnership Common Units held by Partners other than the General Partner and the Special Limited Partner, shall not be entitled to elect or effect a Redemption to the extent that the aggregate Percentage Interests of the Limited Partners (other than the Special Limited Partner) would be reduced, as a result of the Redemption, to less than one percent (1%) and (ii) shall have no rights under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership LimitCharter. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C8.6C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the Previous General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A 8.6B hereof. D. If In the event that the Partnership declines to cause the Previous General Partner to acquire all of the Tendered Units from the Tendering Party in exchange for REIT Shares pursuant to Section 8.6B hereof following receipt of a Notice of Redemption (a “Declination”): (1) The Previous General Partner or the General Partner does not elect shall give notice of such Declination to acquire the Tendered Units pursuant to Section 15.1.B hereof:Tendering Partner on or before the close of business on the Cut-Off Date. (12) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership such funds from the proceeds of a registered public offering (a “Public Offering Funding”) by the Previous General Partner of a number of REIT Shares sufficient (“Registrable Shares”) equal to purchase the REIT Shares Amount with respect to the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. (3) Promptly upon the General Partner’s receipt of the Notice of Redemption and the Previous General Partner or the General Partner giving notice of the Partnership’s Declination, the General Partner shall give notice (a “Single Funding Notice”) to all Qualifying Parties then holding a Partnership Interest (or an interest therein) and having Redemption rights pursuant to this Section 8.6 and require that all such Qualifying Parties elect whether or not to effect a Redemption of their Partnership Common Units to be funded through such Public Offering Funding. In the event that any such Qualifying Party elects to effect such a Redemption, it shall give notice thereof and of the number of Partnership Common Units to be made subject thereon in writing to the General Partner within ten (10) Business Days after receipt of the Single Funding Notice, and such Qualifying Party shall be treated as a Tendering Party for all purposes of this Section 8.6. In the event that a Qualifying Party does not so elect, it shall be deemed to have waived its right to effect a Redemption for the current Twelve-Month Period; provided, however, that the Previous General Partner shall not be required to acquire Partnership Common Units pursuant to this Section 8.6D more than twice within a Twelve-Month Period. Any proceeds from a Public Offering Funding that are in excess of the Cash Amount shall be for the sole benefit of the Previous General Partner and/or the General Partner. The General Partner and/or the Special Limited Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest and/or Limited Partner Interest. Any such contribution shall entitle the General Partner and the Special Limited Partner, as the case may be, to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B 8.6B hereof, the Previous General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for the REIT Shares Amount if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 8.6C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.18.6: (1) All Partnership Common Units acquired by the Previous General Partner pursuant to Section 15.1.B 8.6B hereof shall be contributed by the Previous General Partner to either or both of the General Partner and the Special Limited Partner in such proportions as the Previous General Partner and the General Partner shall determine. Any Partnership Common Units so contributed to the General Partner shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. Any Partnership Common Units so contributed to the Special Limited Partner shall remain outstanding. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand five hundred (1,000500) Partnership Common Redeemable Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand five hundred (1,000500) Partnership Common Redeemable Units, all of the Partnership Common Redeemable Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Each Tendering Party surrenders its Tendered Units (a) may effect a Redemption only once in each fiscal quarter of a Twelve-Month Period and (b) may not effect a Redemption during the period after the Partnership Record Date with respect to a distribution and before the record date established by the Previous General Partner for a distribution to its stockholders shareholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) Notwithstanding anything herein to the contrary, with respect to any Redemption or acquisition of Tendered Units by the Previous General Partner pursuant to Section 8.6B hereof, in the event that the Previous General Partner or the General Partner gives notice to all Limited Partners (but excluding any Assignees) then owning Partnership Interests (a “Primary Offering Notice”) that the Previous General Partner desires to effect a primary offering of its equity securities then, unless the Previous General Partner and the General Partner otherwise consent, commencement of the actions denoted in Section 8.6E hereof as to a Public Offering Funding with respect to any Notice of Redemption thereafter received, whether or not the Tendering Party is a Limited Partner, may be delayed until the earlier of (a) the completion of the primary offering or (b) ninety (90) days following the giving of the Primary Offering Notice. (5) Without the Consent of the Previous General Partner, no Tendering Party may effect a Redemption within ninety (90) days following the closing of any prior Public Offering Funding. (6) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (57) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions provision of Section 11.5 hereof) all Partnership Common Redeemable Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Redeemable Units for all purposes of this Agreement, until such Partnership Common Redeemable Units are either paid for by the Partnership pursuant to Section 15.1.A 8.6A hereof or transferred to the Previous General Partner (or directly to the General Partner or the Special Limited Partner) and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 8.6B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the Previous General Partner pursuant to Section 15.1.B 8.6B hereof, the Tendering Party shall have no rights as a stockholder shareholder of the Previous General Partner with respect to the REIT Shares issuable in connection with such acquisition. For purposes of determining compliance with the restrictions set forth in this Section 8.6F, all Partnership Common Units beneficially owned by a Related Party of a Tendering Party shall be considered to be owned or held by such Tendering Party. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner8.6, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereofRedemption, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(18.6G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereofRedemption, neither the Tendering Party nor, to the best of its knowledge, nor any other Person Related Party shall own REIT Shares in violation of the Ownership Limit. H. The General Partner shall establish a Specified Redemption Date in each quarter of each Fiscal Year; and (4) In connection with any Special Redemption, provided that the General Partner may postpone any such date one or more times. The General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it provide notice to the effect that the proposed Special Partners of each Specified Redemption will not cause the Partnership or Date at least 75 days prior to such date. The General Partner may, in its sole discretion, establish additional Specified Redemption Dates on such terms and conditions as determined by the General Partner to violate any federal in its sole discretion, if it determines that doing so would not create a material risk that the Partnership would become a “publicly traded partnership,” as such term is defined in Section 469(k)(2) or state securities laws or regulations applicable to the Special Redemption, the issuance and sale Section 7704(b) of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this AgreementCode. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Aimco OP L.P.), Limited Partnership Agreement (Aimco OP L.P.)

Redemption Rights of Qualifying Parties. A. After the Twelve-Month Period applicable Redemption Hold Periodto such Partnership Common Units, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Twelve-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, provided that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) until and unless the date the General Partner notifies the Tendering Party that the General Special Limited Partner declines or fails to acquire some or all of the Tendered Units under exercise its purchase rights pursuant to Section 15.1.B hereof following receipt of a Notice of Redemption (a “Declination”) and (ii) until the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, funds on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Special Limited Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for the REIT Shares Amount calculated based on the portion of Tendered Units it elects to acquire in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Special Limited Partner so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Special Limited Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Special Limited Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Special Limited Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner Special Limited Partner, given on or before the close of business on the Cut-Off Date Date, that the General Special Limited Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Special Limited Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Special Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Special Limited Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Special Limited Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Special Limited Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Special Limited Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section Sections 15.1.A and 15.1.B hereof, (i) no Person shall be entitled to effect a Redemption for cash or an exchange for REIT Shares to the Tendering Parties extent the ownership or right to acquire REIT Shares pursuant to such exchange on the Specified Redemption Date could cause such Person (or any other Person) to violate the restrictions on ownership and transfer of REIT Shares set forth in the Charter, after giving effect to any waivers or modifications of such restrictions by the Board of Directors, and (ii) no Person shall have no any rights under this Agreement that to acquire REIT Shares which would otherwise be prohibited under the Charter, after giving effect to any waivers or modifications of such restrictions by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition Board of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership LimitDirectors. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in the Cash Amount otherwise payable upon such Redemption or the REIT Shares otherwise issuable by the General Special Limited Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If In the General event of a Declination: (1) The Special Limited Partner does not elect shall give notice of such Declination to the Tendering Party on or before the close of business on the Cut-Off Date. The failure of the Special Limited Partner to give notice of such Declination by the close of business on the Cut-Off Date shall be deemed to be an election by the Special Limited Partner to acquire the Tendered Units pursuant to Section 15.1.B hereof:in exchange for REIT Shares. (12) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Special Limited Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Special Limited Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (23) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B hereof or Section 15.1.H hereof, if the General Partner shall not, under any circumstances, elect to acquire any Special Limited Partner’s acquisition of Tendered Units in exchange for the REIT Shares if such acquisition Amount would be prohibited under the Charter, then (i) the Special Limited Partner shall not elect to acquire such Tendered Units, and (ii) the Partnership shall not be obligated to effect a Redemption of such Tendered Units. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by Without the consent of the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership LimitPartner, no Tendering Party may effect a Redemption for less than one two thousand (1,0002,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) holds less than one two thousand (1,0002,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (32) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution payable to Holders of Partnership Common Units, and before the record date established by the General Special Limited Partner for a distribution dividend to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Special Limited Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, then such Tendering Party shall pay to the General Special Limited Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units. (43) The consummation of such Redemption (or an acquisition of Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (54) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until the Specified Redemption Date and until such Partnership Common Tendered Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Special Limited Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. 15.1.B. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Special Limited Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to unless waived by the General Special Limited Partner, the Tendering Party shall submit the following to the General Special Limited Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge such Tendering Party’s knowledge, any Related Party Party, and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor nor, to the best of their knowledge such Tendering Party’s knowledge, any Related Party Party, will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor nor, to the best of its knowledge such Tendering Party’s knowledge, any Related Party Party, has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and and, to the best of its knowledge such Tendering Party’s knowledge, any Related Party Party, remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) 15.1G(1), or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its such Tendering Party’s knowledge, any other Person Related Party, shall own REIT Shares in violation of the Ownership Limit; and. (4) In connection with any Special Redemption, the General Special Limited Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Partnership, the General Partner or the General Special Limited Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party Redemption or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 2 contracts

Samples: Agreement of Limited Partnership (CyrusOne Inc.), Agreement of Limited Partnership (CyrusOne Inc.)

Redemption Rights of Qualifying Parties. A. After the Subject to any applicable Redemption Hold Restricted Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Restricted Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner and the Special Limited Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner Partner, on behalf of the Partnership, notifies the Tendering Party that the General Partnership has declined to elect to require the Special Limited Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that tenth (10th) Business Day following the date on which the General Partner may elect to cause receives a Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountTendering Party. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner Partnership may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to require the Special Limited Partner to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Parent Shares. If the General Partnership elects to require the Special Limited Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner Partnership shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partnership elects to require the Special Limited Partner elects to acquire any of the Tendered Units for REIT Parent Shares, the General Special Limited Partner shall issue and deliver such REIT Parent Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Special Limited Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Special Limited Partner in exchange for the REIT Parent Shares Amount. If the General Partner Partnership so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Special Limited Partner in exchange for a number of REIT Parent Shares equal to the product of the REIT Parent Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Special Limited Partner may reasonably require in connection with the application of the Parent Share Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Special Limited Partner’s view, to effect compliance with the Securities Act. In the event of a an election by the Partnership to require the Special Limited Partner to purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner Partnership given on or before the close of business on the Cut-Off Date that the General Partner Partnership has elected to require the Special Limited Partner to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Parent Shares equal to the product of the Applicable Percentage and the REIT Parent Shares Amount, if applicable, shall be delivered by the General Special Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Parent Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Parent Share Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Special Limited Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause Parent or the General Special Limited Partner to register, qualify or list any REIT Parent Shares owned or held by such Person, whether or not such REIT Parent Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between Parent or the General Special Limited Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Parent Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Parent Shares issued delivered upon an acquisition of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Special Limited Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Special Limited Partner Charter or the Parent Charter and shall have no rights to require the Partnership to redeem Common Tendered Units or require the Special Limited Partner to acquire Tendered Units if such a redemption or the acquisition of such Common Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the REIT Share Ownership Limit or the Parent Share Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, to the fullest extent permitted by law, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Parent Shares otherwise issuable deliverable by the General Special Limited Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner Partnership does not elect to require the Special Limited Partner to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may may, in the sole and absolute discretion of the General Partner, elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Special Limited Partner contribute to the Partnership funds from the proceeds of a registered public offering sale by the General Special Limited Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Special Limited Partner shall make a Capital Contribution of any such amounts to the Partnership in exchange for an additional General Partnership Units, and the Partnership is hereby authorized from time to time to issue such additional Partnership Units in consideration therefor without any further act, approval or vote of any Partner Interestor other Persons. Any such contribution shall entitle the General Special Limited Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Special Limited Partner shall not, under any circumstances, elect to not acquire any Tendered Units in exchange for REIT Parent Shares if such acquisition exchange would be prohibited under the CharterSpecial Limited Partner Charter or the Parent Charter or result in any violation of the REIT Share Ownership Limit or the Parent Share Ownership Limit. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Special Limited Partner’s Partnership Interest comprised of the same number of Partnership Common Units. (2) Subject to the Parent Share Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner, which may be given or withheld in its sole and absolute discretion. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner Parent for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partnership elects to require the Special Limited Partner elects to acquire any of such Tendered Units in exchange for REIT Parent Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Special Limited Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Parent Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Parent Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Special Limited Partner and paid for, by the issuance delivery of the REIT Parent Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner Parent with respect to the REIT Parent Shares issuable deliverable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, in its sole and absolute discretion, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Parent Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Parent Shares in violation of the Parent Share Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Parent Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Parent Shares by the Tendering Party and to the best of its their knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, nor to the best of its knowledge, their knowledge any other Person Related Party shall own REIT Parent Shares in violation of the Parent Share Ownership Limit; and (4) In connection with any Special Redemption, the General Special Limited Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause Parent, the Partnership Partnership, the General Partner or the General Special Limited Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Parent Shares to the Tendering Party pursuant to the Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Brixmor Property Group Inc.), Limited Partnership Agreement (Brixmor Property Group Inc.)

Redemption Rights of Qualifying Parties. A. (a) After the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) (the “Redemption Right”) to require the Partnership to redeem all or a portion of the Partnership Common applicable OP Units held by such Tendering Party (Partnership Common OP Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder holder thereof prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right Right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to require the Initial Limited Partner to acquire some or all of the Tendered Units under Section 15.1.B 15.1(b) hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. (b) Notwithstanding the provisions of Section 15.1.A 15.1(a) hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to require the Initial Limited Partner to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Sharesshares of Common Stock or the Cash Amount payable on the Specified Redemption Date. If the General Partner elects to require the Initial Limited Partner to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to require the Initial Limited Partner to acquire any of the Tendered Units for REIT Sharesshares of Common Stock, the General Initial Limited Partner shall issue and deliver such REIT Shares Common Stock to the Tendering Party pursuant to the terms of this Section 15.1.B15.1(b), in which case (1) the General Initial Limited Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right Right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Initial Limited Partner in exchange for the REIT Shares Common Stock Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Initial Limited Partner in exchange for a number of REIT Shares shares of Common Stock equal to the product of the REIT Shares Common Stock Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Initial Limited Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Initial Limited Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Initial Limited Partner pursuant to this Section 15.1.B15.1(b), the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to require the Initial Limited Partner to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares shares of Common Stock equal to the product of the Applicable Percentage and the REIT Shares Common Stock Amount, if applicable, shall be delivered by the General Initial Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares shares of Common Stock and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Initial Limited Partner pursuant to this Section 15.1.B15.1(b), any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Initial Limited Partner to register, qualify or list any REIT Shares Common Stock owned or held by such Person, whether or not such REIT Shares shares of Common Stock are issued pursuant to this Section 15.1.B15.1(b), with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Initial Limited Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner Shares of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares Common Stock issued upon an acquisition of the Tendered Units by the General Initial Limited Partner pursuant to this Section 15.1.B 15.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. (c) Notwithstanding the provisions of Section 15.1.A 15.1(a) and 15.1.B 15.1(b) hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter Articles of Incorporation and shall have no rights to require the Partnership to redeem Common OP Units if the acquisition of such Common OP Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof would be in violation of this Section 15.1.C15.1(c), it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares the shares of Common Stock otherwise issuable by the General Initial Limited Partner under Section 15.1.B 15.1(b) hereof or cash otherwise payable under Section 15.1.A 15.1(a) hereof. D. (d) If the General Partner does not elect to require the Initial Limited Partner to acquire the Tendered Units pursuant to Section 15.1.B 15.1(b) hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 2 contracts

Samples: Contribution Agreement (Phillips Edison Grocery Center Reit I, Inc.), Contribution Agreement (Phillips Edison Grocery Center Reit I, Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold first Twelve-Month Period, a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Redeemable Units held by such Tendering Party (Partnership Common such Redeemable Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for REIT Shares issuable on, or the Cash Amount payable on on, the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause as determined by the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreementin its sole discretion. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation A Tendering Party shall have no right to effect a receive distributions with respect to any Tendered Units (other than the Cash Amount) paid after delivery of the Notice of Redemption, however, shall whether or not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some Record Date for such distribution precedes or all coincides with such delivery of the Notice of Redemption. If the Partnership elects to redeem Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemptionfor cash, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner Partnership elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the redeem Tendered Units for REIT SharesShares rather than cash, then the Partnership shall direct the Previous General Partner shall to issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of set forth in this Section 15.1.B8.6B, in which case case, (1i) the Previous General Partner Partner, acting as a distinct legal entity, shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units right, and (2ii) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the Previous General Partner in exchange for REIT Shares. The percentage of the Tendered Units tendered for Redemption by the Tendering Party for which the Partnership elects to cause the Previous General Partner to issue REIT Shares Amount(rather than cash) is referred to as the “Applicable Percentage.” In making such election to cause the Previous General Partner to acquire Tendered Units, the Partnership shall act in a fair, equitable and reasonable manner that neither prefers one group or class of Qualifying Parties over another nor discriminates against a group or class of Qualifying Parties. If the General Partner so electsPartnership elects to redeem any number of Tendered Units for REIT Shares, rather than cash, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the Previous General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the Previous General Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the Previous General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the The product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the Previous General Partner as duly authorized, validly issued, fully paid and non-assessable accessible REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Bylaws of the Previous General Partner, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the Previous General Partner pursuant to this Section 15.1.B8.6B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the Previous General Partner or the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B8.6B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the Previous General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the Previous General Partner pursuant to this Section 15.1.B 8.6B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the Previous General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A 8.6A and 15.1.B 8.6B hereof, the Tendering Parties (i) where the Redemption would consist of less than all the Partnership Common Units held by Partners other than the General Partner and the Special Limited Partners, shall not be entitled to elect or effect a Redemption to the extent that the aggregate Percentage Interests of the Limited Partners (other than the Special Limited Partners) would be reduced, as a result of the Redemption, to less than one percent (1%) and (ii) shall have no rights under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership LimitCharter. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C8.6C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the Previous General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A 8.6B hereof. D. If In the event that the Partnership declines to cause the Previous General Partner to acquire all of the Tendered Units from the Tendering Party in exchange for REIT Shares pursuant to Section 8.6B hereof following receipt of a Notice of Redemption (a “Declination”): (1) The Previous General Partner or the General Partner does not elect shall give notice of such Declination to acquire the Tendered Units pursuant to Section 15.1.B hereof:Tendering Partner on or before the close of business on the Cut-Off Date. (12) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership such funds from the proceeds of a registered public offering (a “Public Offering Funding”) by the Previous General Partner of a number of REIT Shares sufficient (“Registrable Shares”) equal to purchase the REIT Shares Amount with respect to the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. (3) Promptly upon the General Partner’s receipt of the Notice of Redemption and the Previous General Partner or the General Partner giving notice of the Partnership’s Declination, the General Partner shall give notice (a “Single Funding Notice”) to all Qualifying Parties then holding a Partnership Interest (or an interest therein) and having Redemption rights pursuant to this Section 8.6 and require that all such Qualifying Parties elect whether or not to effect a Redemption of their Partnership Common Units to be funded through such Public Offering Funding. In the event that any such Qualifying Party elects to effect such a Redemption, it shall give notice thereof and of the number of Partnership Common Units to be made subject thereon in writing to the General Partner within ten (10) Business Days after receipt of the Single Funding Notice, and such Qualifying Party shall be treated as a Tendering Party for all purposes of this Section 8.6. In the event that a Qualifying Party does not so elect, it shall be deemed to have waived its right to effect a Redemption for the current Twelve-Month Period; provided, however, that the Previous General Partner shall not be required to acquire Partnership Common Units pursuant to this Section 8.6D more than twice within a Twelve-Month Period. Any proceeds from a Public Offering Funding that are in excess of the Cash Amount shall be for the sole benefit of the Previous General Partner and/or the General Partner. The General Partner and/or the Special Limited Partners shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest and/or Limited Partner Interest. Any such contribution shall entitle the General Partner and the Special Limited Partners, as the case may be, to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B 8.6B hereof, the Previous General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for the REIT Shares Amount if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 8.6C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.18.6: (1) All Partnership Common Units acquired by the Previous General Partner pursuant to Section 15.1.B 8.6B hereof shall be contributed by the Previous General Partner to any or all of the General Partner and the Special Limited Partners in such proportions as the Previous General Partner, the General Partner and the Special Limited Partners shall determine. Any Partnership Common Units so contributed to the General Partner shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. Any Partnership Common Units so contributed to the Special Limited Partners shall remain outstanding. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand five hundred (1,000500) Partnership Common Redeemable Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand five hundred (1,000500) Partnership Common Redeemable Units, all of the Partnership Common Redeemable Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Each Tendering Party surrenders its Tendered Units (a) may effect a Redemption only once in each fiscal quarter of a Twelve-Month Period and (b) may not effect a Redemption during the period after the Partnership Record Date with respect to a distribution and before the record date established by the Previous General Partner for a distribution to its stockholders shareholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) Notwithstanding anything herein to the contrary, with respect to any Redemption or acquisition of Tendered Units by the Previous General Partner pursuant to Section 8.6B hereof, in the event that the Previous General Partner or the General Partner gives notice to all Limited Partners (but excluding any Assignees) then owning Partnership Interests (a “Primary Offering Notice”) that the Previous General Partner desires to effect a primary offering of its equity securities then, unless the Previous General Partner and the General Partner otherwise consent, commencement of the actions denoted in Section 8.6E hereof as to a Public Offering Funding with respect to any Notice of Redemption thereafter received, whether or not the Tendering Party is a Limited Partner, may be delayed until the earlier of (a) the completion of the primary offering or (b) ninety (90) days following the giving of the Primary Offering Notice. (5) Without the Consent of the Previous General Partner, no Tendering Party may effect a Redemption within ninety (90) days following the closing of any prior Public Offering Funding. (6) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (57) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions provision of Section 11.5 hereof) all Partnership Common Redeemable Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Redeemable Units for all purposes of this Agreement, until such Partnership Common Redeemable Units are either paid for by the Partnership pursuant to Section 15.1.A 8.6A hereof or transferred to the Previous General Partner (or directly to the General Partner or Special Limited Partners) and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 8.6B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the Previous General Partner pursuant to Section 15.1.B 8.6B hereof, the Tendering Party shall have no rights as a stockholder shareholder of the Previous General Partner with respect to the REIT Shares issuable in connection with such acquisition. For purposes of determining compliance with the restrictions set forth in this Section 8.6F, all Partnership Common Units beneficially owned by a Related Party of a Tendering Party shall be considered to be owned or held by such Tendering Party. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner8.6, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereofRedemption, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(18.6G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereofRedemption, neither the Tendering Party nor, to the best of its knowledge, nor any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Apartment Income REIT Corp.), Limited Partnership Agreement (Apartment Income REIT Corp.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Twelve-Month Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Twelve-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that tenth (10th) Business Day following the date on which the General Partner may elect to cause receives a Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountTendering Party. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT SharesShares (the percentage of such Tendered Units to be acquired by the General Partner in exchange for REIT Shares being referred to as the “Applicable Percentage”). If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership LimitCharter. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its their knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, nor to the best of its knowledge, their knowledge any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and. (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 2 contracts

Samples: Agreement of Limited Partnership (Wheeler Real Estate Investment Trust, Inc.), Limited Partnership Agreement (Wheeler Real Estate Investment Trust, Inc.)

Redemption Rights of Qualifying Parties. A. (a) After the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B 15.1(b) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B 15.1(b) hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. (b) Notwithstanding the provisions of Section 15.1.A 15.1(a) hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B15.1(b), in which case (1i) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2ii) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (iA) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (iiB) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B15.1(b), the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B15.1(b), any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B15.1(b), with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B 15.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. (c) Notwithstanding the provisions of Section 15.1.A 15.1(a) and 15.1.B 15.1(b) hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof would be in violation of this Section 15.1.C15.1(c), it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B 15.1(b) hereof or cash otherwise payable under Section 15.1.A 15.1(a) hereof. D. (d) If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B 15.1(b) hereof: (1i) The Partnership may elect to raise funds for the payment of the Cash Amount either (aA) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (bB) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. Any proceeds from a public offering that are in excess of the Cash Amount shall be for the sole benefit of the General Partner. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2ii) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. (e) Notwithstanding the provisions of Section 15.1.B 15.1(b) hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. (f) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 15.1(c) hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B 15.1(b) hereof) pursuant to this Section 15.1: (1i) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B 15.1(b) hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2ii) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3iii) If (iA) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (iiB) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B15.1(b), such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4iv) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the XxxxHxxx-Xxxxx-Xxxxxx Act. (5v) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A 15.1(a) hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. (g) In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1i) A written affidavit, dated the same date as the Notice of Redemption, (aA) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (iI) such Tendering Party and (iiII) to the best of their knowledge any Related Party and (bB) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2ii) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date; (3iii) An undertaking to certify, at and as a condition of the closing of (iA) the Redemption or (iiB) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date, that either (aI) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(115.1(g)(i) or (bII) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4iv) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B 15.1(b) of this Agreement. H. (h) LTIP Unit Exception and Redemption of Partnership Common Units Issued Upon Conversion of LTIP Units. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Orion Office REIT Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold first Twelve-Month Period, a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Redeemable Units held by such Tendering Party (Partnership Common such Redeemable Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”"TENDERED UNITS") in exchange (a “Redemption”"REDEMPTION") for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”"TENDERING PARTY"). The Partnership’s 's obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of until and unless there has been a Notice of Redemption Declination and (ii) before the Business Day following the Cut-Off Date. Regardless of the binding or non-binding nature of a pending Redemption, a Tendering Party shall have no right to receive distributions with respect to any Tendered Units (other than the Cash Amount) paid after delivery of the Notice of Redemption, whether or not the Partnership Record Date for such distribution precedes or coincides with such delivery of the Notice of Redemption. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s 's sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A 8.6.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership LimitLimit and the transfer restrictions and other limitations of the Charter, elect to cause the Previous General Partner to acquire some or all (such percentage being referred to as the “Applicable Percentage”"APPLICABLE PERCENTAGE") of the Tendered Units from the Tendering Party in exchange for REIT Shares. If In making such election to cause the Previous General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.BUnits, the General Partner shall give written notice thereof to the Tendering Party on act in a fair, equitable and reasonable manner that neither prefers one group or before the close class of business on the Cut-Off Date. If the General Partner elects to acquire any Qualifying Parties over another nor discriminates against a group or class of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares AmountQualifying Parties. If the General Partner so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the Previous General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the Previous General Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the Previous General Partner’s 's view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the Previous General Partner pursuant to this Section 15.1.B8.6.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner or the Previous General Partner, given on or before the close of business on the Cut-Off Date Date, that the Previous General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B8.6.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s 's notice relates shall not accrue or arise. A number of REIT Shares equal to the The product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the Previous General Partner as duly authorized, validly issued, fully paid and non-assessable accessible REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Bylaws of the Previous General Partner, the Securities Act and relevant state securities or "blue sky" laws. Neither any Tendering Party whose Tendered Units are acquired by the Previous General Partner pursuant to this Section 15.1.B8.6.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the Previous General Partner or the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B8.6.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; providedPROVIDED, howeverHOWEVER, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the Previous General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the Previous General Partner pursuant to this Section 15.1.B 8.6.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the Previous General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A 8.6.A and 15.1.B 8.6.B hereof, the Tendering Parties (i) where the Redemption would consist of less than all the Partnership Common Units held by Partners other than the General Partner and the Special Limited Partner, shall not be entitled to elect or effect a Redemption to the extent that the aggregate Percentage Interests of the Limited Partners (other than the Special Limited Partner) would be reduced, as a result of the Redemption (or the acquisition of the Tendered Units by the Previous General Partner pursuant to Section 8.6.B hereof), to less than one percent (1%) and (ii) shall have no rights under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership LimitCharter. To the extent that any attempted Redemption or acquisition of the Tendered Units by the Previous General Partner pursuant to Section 15.1.B 8.6.B hereof would be in violation of this Section 15.1.C8.6.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the Previous General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A 8.6.B hereof. D. If In the event that the Previous General Partner declines or fails to exercise its purchase rights pursuant to Section 8.6.B hereof following receipt of a Notice of Redemption (a "DECLINATION"): (1) The Previous General Partner or the General Partner does not elect shall give notice of such Declination to acquire the Tendered Units pursuant Tendering Party on or before the close of business on the Cut-Off Date. The failure of both the Previous General Partner and the General Partner to Section 15.1.B hereof:give notice of such Declination by the close of business on the Cut-Off Date shall itself constitute a Declination. (12) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership such funds from the proceeds of a registered public offering (a "PUBLIC OFFERING FUNDING") by the Previous General Partner of a number of REIT Shares sufficient ("REGISTRABLE SHARES") equal to purchase the REIT Shares Amount with respect to the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. (3) Promptly upon the General Partner's receipt of the Notice of Redemption and the Previous General Partner or the General Partner giving notice of the Previous General Partner's Declination, the General Partner shall give notice (a "SINGLE FUNDING NOTICE") to all Qualifying Parties then holding a Partnership Interest (or an interest therein) and having Redemption rights pursuant to this Section 8.6 and require that all such Qualifying Parties elect whether or not to effect a Redemption of their Partnership Common Units to be funded through such Public Offering Funding. In the event that any such Qualifying Party elects to effect such a Redemption, it shall give notice thereof and of the number of Partnership Common Units to be made subject thereon in writing to the General Partner within ten (10) Business Days after receipt of the Single Funding Notice, and such Qualifying Party shall be treated as a Tendering Party for all purposes of this Section 8.6. In the event that a Qualifying Party does not so elect, it shall be deemed to have waived its right to effect a Redemption for the current Twelve-Month Period; 44 PROVIDED, HOWEVER, that the Previous General Partner shall not be required to acquire Partnership Common Units pursuant to this Section 8.6.D more than twice within a Twelve-Month Period. Any proceeds from a Public Offering Funding that are in excess of the Cash Amount shall be for the sole benefit of the Previous General Partner and/or the General Partner. The General Partner and/or the Special Limited Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest and/or Limited Partner Interest. Any such contribution shall entitle the General Partner and the Special Limited Partner, as the case may be, to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B 8.6.B hereof, the Previous General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for the REIT Shares Amount if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 8.6.C hereof), with respect to any Redemption (or any tender of Partnership Common Redeemable Units for Redemption if the Tendered Units are acquired by the Previous General Partner pursuant to Section 15.1.B 8.6.B hereof) pursuant to this Section 15.18.6: (1) All Partnership Common Units acquired by the Previous General Partner pursuant to Section 15.1.B 8.6.B hereof shall be contributed by the Previous General Partner to either or both of the General Partner and the Special Limited Partner in such proportions as the Previous General Partner, the General Partner and the Special Limited Partner shall determine. Any Partnership Common Units so contributed to the General Partner shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. Any Partnership Common Units so contributed to the Special Limited Partner shall remain outstanding. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand five hundred (1,000500) Partnership Common Redeemable Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand five hundred (1,000500) Partnership Common Redeemable Units, all of the Partnership Common Redeemable Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Each Tendering Party surrenders its Tendered Units (a) may effect a Redemption only once in each fiscal quarter of a Twelve-Month Period and (b) may not effect a Redemption during the period after the Partnership Record Date with respect to a distribution and before the record date established by the Previous General Partner for a distribution to its stockholders shareholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) Notwithstanding anything herein to the contrary, with respect to any Redemption or acquisition of Tendered Units by the Previous General Partner pursuant to Section 8.6.B hereof, in the event that the Previous General Partner or the General Partner gives notice to all Limited Partners (but excluding any Assignees) then owning Partnership Interests (a "PRIMARY OFFERING NOTICE") that the Previous General Partner desires to effect a primary offering of its equity securities then, unless the Previous General Partner and the General Partner otherwise consent, commencement of the actions denoted in Section 8.6.E hereof as to a Public Offering Funding with respect to any Notice of Redemption thereafter received, whether or not the Tendering Party is a Limited Partner, may be delayed until the earlier of (a) the completion of the primary offering or (b) ninety (90) days following the giving of the Primary Offering Notice. (5) Without the Consent of the Previous General Partner, no Tendering Party may effect a Redemption within ninety (90) days following the closing of any prior Public Offering Funding. (6) The consummation of such Redemption (or an acquisition of Tendered Units by the Previous General Partner pursuant to Section 15.1.B 8.6.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (57) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions provision of Section 11.5 hereof) all Partnership Common Redeemable Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Redeemable Units for all purposes of this Agreement, until such Partnership Common Redeemable Units are either paid for by the Partnership pursuant to Section 15.1.A 8.6.A hereof or transferred to the Previous General Partner (or directly to the General Partner or Special Limited Partner) and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the Previous General Partner pursuant to Section 15.1.B 8.6.B hereof, the Tendering Party shall have no rights as a stockholder shareholder of the Previous General Partner with respect to the REIT Shares issuable in connection with such acquisition. For purposes of determining compliance with the restrictions set forth in this Section 8.6.F, all Partnership Common Units beneficially owned by a Related Party of a Tendering Party shall be considered to be owned or held by such Tendering Party. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner8.6, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the Previous General Partner pursuant to Section 15.1.B 8.6.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the Previous General Partner pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the Previous General Partner pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(18.6.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the Previous General Partner pursuant to Section 15.1.B 8.6.B hereof, neither the Tendering Party nor, to the best of its knowledge, nor any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Apartment Investment & Management Co)

Redemption Rights of Qualifying Parties. A. (a) After the applicable Redemption Hold Twelve-Month Period, a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (such Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “"Tendered Units") in exchange (a "Redemption") for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the "Tendering Party"). The Partnership’s 's obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of until and unless there has been a Notice of Redemption Declination and (ii) before the Business Day following the Cut-Off Date. Regardless of the binding or non-binding nature of a pending Redemption, a Tendering Party shall have no right to receive distributions with respect to any Tendered Units (other than the Cash Amount) paid after delivery of the Notice of Redemption, whether or not the Partnership Record Date for such distribution precedes or coincides with such delivery of the Notice of Redemption; provided, however, that in the event that the General Partner on behalf of the Partnership elects to fund the Cash Amount with the proceeds of an Offering Funding pursuant to Section 8.6(d) hereof, the Tendering Party's right to receive distributions shall not be suspended as hereinbefore provided and such Tendering Party shall have the right to receive distributions actually made hereunder prior to the date of the closing of the Offering Funding whose proceeds are used to pay the Cash Amount. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s 's sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. (b) Notwithstanding the provisions of Section 15.1.A hereof8.6(a) hereof other than the last sentence thereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership LimitLimit and the transfer restrictions and other limitations of the Charter, elect to acquire some or all (such percentage being referred to as the "Applicable Percentage") of the Tendered Units from the Tendering Party in exchange for the REIT Shares Amount calculated based on the portion of Tendered Units it elects to acquire in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.BIn making such election, the General Partner shall give written notice thereof to the Tendering Party on act in a fair, equitable and reasonable manner that neither prefers one group or before the close class of business on the Cut-Off Date. If the General Partner elects to acquire any Qualifying Parties over another nor discriminates against a group or class of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares AmountQualifying Parties. If the General Partner so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s 's view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B8.6(b), the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B8.6(b), the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s 's notice relates shall not accrue or arise. A number of REIT Shares equal to the The product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable accessible REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Bylaws of the General Partner, the Securities Act and relevant state securities or "blue sky" laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B8.6(b), any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B8.6(b), with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B 8.6(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. The parties agree to treat the exchange of Tendered Units for REIT Shares pursuant to this Section 8.6(b) as a sale or exchange for all tax purposes. C. (c) Notwithstanding the provisions of Section 15.1.A 8.6(a) and 15.1.B 8.6(b) hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights with respect to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6(b) hereof would be in violation of this Section 15.1.C8.6(c), it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A 8.6(b) hereof. D. If (d) In the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring event that the General Partner contribute declines or fails to the Partnership funds from the proceeds exercise its purchase rights pursuant to Section 8.6(b) hereof following receipt of a registered public offering by the General Partner Notice of REIT Shares sufficient to purchase the Tendered Units or Redemption (ba "Declination"): (i) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution give notice of any such amounts Declination to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid Tendering Party on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions close of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner business on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.Cut-

Appears in 1 contract

Samples: Limited Partnership Agreement (Northstar Realty)

Redemption Rights of Qualifying Parties. A. (a) After the expiration or earlier termination of any applicable Redemption Hold Lock-Up Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Qualifying Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption DateDate (in each case, a “Redemption”). The Partnership Notwithstanding the foregoing, the Company may, in the General PartnerManager’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof Tendering Party prior to the end of the any applicable Redemption Hold Lock-Up Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner Manager first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B of this Agreement11.1(e). Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner Manager by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). To be effective, such Notice of Redemption must be received by the Company not less than three (3) and not more than ten (10) Business Days prior to the Specified Redemption Date. The PartnershipCompany’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of Company (i) the date the General Partner notifies the Tendering Party that the General Partner unless and until SDC Inc. declines to acquire some or all of the Tendered Units under exercise its purchase rights pursuant to Section 15.1.B 11.1(b) hereof following receipt of a Notice of Redemption (a “Declination”) and (ii) until the Business Day following the Cut-Off Date. In the event of a Redemption, the applicable Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General PartnerManager’s sole and absolute discretion, in immediately available funds, in each case, by wire transfer of funds on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. (b) Notwithstanding the provisions of Section 15.1.A 11.1(a) hereof, on or before the close of business on the Cut-Off Date, the General Partner SDC Inc. may, in the General Partner’s sole and absolute discretion but subject to of the Ownership LimitBoard of Directors, elect to acquire some or all (such percentage being referred to as the “Applicable Acquired Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Sharesthe Class A Shares Amount or the Cash Amount (as determined by SDC Inc. in its sole discretion), calculated based on the portion of Tendered Units it elects to acquire. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner SDC Inc. so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner SDC Inc. in exchange for (i) a number of REIT Class A Shares equal to the product of the REIT Class A Shares Amount and the Applicable Acquired Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to (ii) cash in an additional 60 Business Days amount equal to the extent required for product of the General Partner to cause additional REIT Shares to be issuedCash Amount and the Acquired Percentage, or (iii) a combination of (i) and (ii), with the form and allocation of consideration determined by SDC Inc. in its sole discretion. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s viewview of SDC Inc., to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner SDC Inc. pursuant to this Section 15.1.B11.1(b), the Tendering Party shall no longer have the right to cause the Partnership Company to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner SDC Inc., given on or before the close of business on the Cut-Off Date Date, that the General Partner SDC Inc. has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B11.1(b), the obligation of the Partnership Company to effect a Redemption of the Tendered Units as to which the General PartnerSDC Inc.’s notice relates shall not accrue or arise. If SDC Inc. elects to acquire Tendered Units for Class A Shares, then a number of REIT Class A Shares equal to the product of the Applicable Percentage and the REIT Class A Shares Amount, if applicable, shall be delivered by the General Partner SDC Inc. as duly authorized, validly issued, fully paid and non-assessable REIT Class A Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than restrictions provided in the Ownership Limitcertificate of incorporation of SDC Inc., the Securities Act and relevant state securities or “blue sky” lawsLaws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner SDC Inc. pursuant to this Section 15.1.B11.1(b), any PartnerMember, any Assignee nor any other interested Person shall have any right to require or cause the General Partner SDC Inc. to register, qualify or list any REIT Class A Shares owned or held by such Person, whether or not such REIT Class A Shares are issued pursuant to this Section 15.1.B11.1(b), with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner SDC Inc. and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Class A Shares and Rights for all purposes, including, without limitation, including rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Class A Shares issued upon an acquisition of the Tendered Units by the General Partner SDC Inc. pursuant to this Section 15.1.B 11.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws Laws as the General Partner SDC Inc. in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding Laws. If SDC Inc. elects to acquire Tendered Units for cash, then cash equal to the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition product of the Tendered Units by Acquired Percentage and the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it Cash Amount shall be null and void ab initio, and delivered as a certified or bank check payable to the Tendering Party or, in SDC Inc.’s sole and absolute discretion, by wire transfer of funds on or before the Specified Redemption Date. (c) In the event of a Declination, SDC Inc. shall not acquire any rights give notice of such Declination to the Tendering Party on or economic interests in REIT Shares otherwise issuable before the close of business on the Cut-Off Date. The failure of SDC Inc. to give notice of such Declination by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If close of business on the General Partner does not elect Cut-Off Date shall be deemed to be an election by SDC Inc. to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership in exchange for Class A Shares or cash. In the event of a Declination, the Company may elect to raise funds for the payment of the any applicable Cash Amount either (a) solely by requiring that the General Partner SDC Inc. or its Subsidiaries contribute to the Partnership Company funds from (i) the proceeds of a registered public offering by the General Partner SDC Inc. of REIT Class A Shares sufficient to purchase the Tendered Units or (ii) any other sources available to SDC Inc. or its Subsidiaries or (b) with the consent of the Tendering Party, from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the PartnershipCompany. The General Partner shall make To the extent determined by the Manager, the Company will treat such a Capital Contribution transaction as a disguised sale under Section 707(a)(2)(B) of any such amounts to the Partnership for an additional General Partner InterestCode. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)Internal Revenue Service. E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. (d) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof)contrary, with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner SDC Inc. pursuant to Section 15.1.B 11.1(b) hereof) pursuant to this Section 15.111.1: (1i) All Partnership Common Units acquired by Without the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised consent of the same number of Partnership Common Units. (2) Subject to the Ownership LimitManager, no Tendering Party may effect a Redemption for less than one five thousand (1,0005,000) Partnership Common Units (as adjusted for any unit split, unit distribution, reverse unit split, reclassification or similar event, in each case with such adjustment being determined by the Manager.) or, if such Tendering Party owns holds less than five thousand (5,000) Common Units (as a Limited Partner oradjusted for any unit split, economicallyunit distribution, as an Assignee) less than one thousand (1,000) Partnership Common Unitsreverse unit split, reclassification or similar event, in each case with such adjustment being determined by the Manager), all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3ii) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Company Record Date with respect to a distribution payable to Holders of Common Units, and before the record date established by the General Partner SDC Inc. for a distribution dividend to its stockholders of some or all of its portion of such Partnership Company distribution, and (ii) the General Partner SDC Inc. elects to acquire any of such Tendered Units in exchange for REIT Class A Shares pursuant to Section 15.1.B11.1(b), then such Tendering Party shall pay to the General Partner SDC Inc. on the Specified Redemption Date an amount in cash equal to the portion of the Partnership Company distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units. (4iii) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner SDC Inc. pursuant to Section 15.1.B 11.1(b) hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (5iv) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof10.5) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner Member or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until the Specified Redemption Date and until such Partnership Common Tendered Units are either paid for by the Partnership Company pursuant to Section 15.1.A 11.1(a) hereof or transferred to the General Partner SDC Inc. and paid for, for by the issuance of the REIT Shares, Class A Shares or payment of cash pursuant to Section 15.1.B hereof on the Specified Redemption Date11.1(b). Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner SDC Inc. for Class A Shares pursuant to Section 15.1.B 11.1(b) hereof, the Tendering Party shall have no rights as a stockholder of the General Partner SDC Inc. with respect to the REIT Class A Shares issuable in connection with such acquisition. G. In connection with an exercise (v) The Manager shall establish a Specified Redemption Date in each quarter of each Fiscal Year, subject to the expiration or earlier termination of any applicable Lock-Up Period, provided, that the Manager may postpone any such date one or more times. The Manager shall provide notice to the Members of each Specified Redemption rights pursuant Date at least forty-five (45) days prior to this Section 15.1such date. The Manager may, except in its sole discretion, establish additional Specified Redemption Dates on such terms and conditions as otherwise Consented to determined by the General PartnerManager in its sole discretion, if it determines that doing so would not create a material risk that the Tendering Party shall submit Company would become a “publicly traded partnership,” as such term is defined in Sections 469(k)(2) or 7704(b) of the following to the General Partner, in addition to the Notice of Redemption:Code. (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4e) In connection with any Special Redemption, the General Partner SDC Inc. shall have the right to receive an opinion of counsel for the Tendering Party reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Company or the General Partner SDC Inc. to violate any federal or state securities laws Laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party Redemption or the issuance and sale of REIT Class A Shares to the Tendering Party pursuant to Section 15.1.B 11.1(b) of this Agreement. H. Holders of LTIP Units shall not be entitled (f) Notwithstanding anything herein to the right of Redemption provided for in Section 15.1 of this Agreementcontrary, unless and until such LTIP Units have been converted into Partnership any Member may exchange Common Units (or any other class or series only to the extent such Member’s Adjusted Capital Account Balance at the time of Partnership the exchange represents at least the same percentage of the aggregate Adjusted Capital Account Balances of all partners of the Company as the percentage interest represented by such Common Units entitled to such right be exchanged. For the avoidance of Redemption) in accordance with their termsdoubt, the exchanging Member may designate the portion of his or her Capital Account attributable to one or more Common Units being exchanged.

Appears in 1 contract

Samples: Limited Liability Company Agreement (SmileDirectClub, Inc.)

Redemption Rights of Qualifying Parties. A. (a) After the expiration or earlier termination of any applicable Redemption Hold Lock-Up Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem exchange all or a portion of the Partnership Class A Common Units held by such Tendering Qualifying Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Class A Shares Amount or, at the sole and absolute election of the General Partner, for the Cash Amount payable on the Specified Redemption DateDate (in each case, a “Redemption”), in each case pursuant to, and in accordance with, the Charter and the provisions of this Article XIV. The Notwithstanding the foregoing, the Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the any applicable Redemption Hold Lock-Up Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, provided that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B of this Agreement14.1(e). Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against In the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party event that the General Partner declines elects to acquire some redeem all or all a portion of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) in exchange for the Business Day following the Cut-Off Date. In the event of a Redemptionapplicable Cash Amount, the such applicable Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, by wire transfer of funds on or before the Specified Redemption Date; provided, however, that . (b) If the General Partner may does not elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off DateDate to redeem all of the Tendered Units from the Tendering Party in exchange for the Cash Amount, then the General Partner may, portion of the Tendered Units not being redeemed for the Cash Amount shall be redeemed for the Class A Shares Amount calculated based on the portion of Tendered Units to be acquired in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all exchange for Class A Shares (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued). The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Special Limited Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Class A Shares equal to the product of the Applicable Percentage and the REIT Class A Shares Amount, if applicable, shall be delivered by the General Special Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Class A Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than restrictions provided in the Ownership LimitCharter, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Class A Shares and Rights for all purposes, including, without limitation, including rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Class A Shares issued upon an acquisition of the Tendered Units by the General Partner in connection with a Redemption pursuant to this Section 15.1.B 14.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Special Limited Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1c) The Partnership may elect to raise funds for the payment of the any applicable Cash Amount either (a) solely by requiring that the General Special Limited Partner or its Subsidiaries contribute to the Partnership funds from (i) the proceeds of a registered public offering by the General Special Limited Partner of REIT Class A Shares sufficient to purchase the Tendered Units or (ii) any other sources available to the Special Limited Partner or its Subsidiaries or (b) with the consent of the Tendering Party, from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The To the extent determined by the General Partner shall make a Capital Contribution of any such amounts to Partner, the Partnership for an additional General Partner Interestwill treat such a transaction as a disguised sale under Code section 707(a)(2)(B). Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. (d) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof)contrary, with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.114.1: (1i) All Partnership Common Units acquired by Without the consent of the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership LimitPartner, no Tendering Party may effect a Redemption for less than one ten thousand (1,00010,000) Partnership Class A Common Units (as adjusted for any unit split, unit distribution, reverse unit split, reclassification or similar event, in each case with such adjustment being determined by the General Partner) or, if such Tendering Party owns holds less than ten thousand (10,000) Partnership Class A Common Units (as a Limited Partner oradjusted for any unit split, economicallyunit distribution, as an Assignee) less than one thousand (1,000) Partnership Common Unitsreverse unit split, reclassification or similar event, in each case with such adjustment being determined by the General Partner), all of the Partnership Class A Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3ii) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution payable to Holders of Partnership Common Units, and before the record date established by the General Special Limited Partner for a distribution dividend to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Special Limited Partner elects to acquire redeem any of such Tendered Units in exchange for REIT Class A Shares pursuant to Section 15.1.B14.1(b), then such Tendering Party shall pay to the General Special Limited Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units. (4iii) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (5iv) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof10.5) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption DateDate and until such Tendered Units are redeemed. Until a Specified Redemption Date and an acquisition a redemption of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereoffor the Class A Share Amount, the Tendering Party shall have no rights as a stockholder of the General Special Limited Partner with respect to the REIT Class A Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except (v) The General Partner shall establish one or more dates in each fiscal year as otherwise Consented to by a date on which the General Partner, the Tendering Qualifying Party shall submit the following be permitted, subject to the General Partnerexpiration or earlier termination of any applicable Lock-Up Period, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the deliver a Notice of Redemption, (a) disclosing provided that the actual General Partner may postpone any such date one or more times. The General Partner may permit, in writing or orally, one or more Qualifying Parties to submit a Notice of Redemption on such other dates, such permission to be granted, withheld or granted on such terms and constructive ownership, conditions as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit;its sole discretion. (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4e) In connection with any Special Redemption, the General Special Limited Partner shall have the right to receive an opinion of counsel for the Tendering Party reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Partnership, the General Partner or the General Special Limited Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party Redemption or the issuance and sale of REIT Class A Shares to the Tendering Party pursuant to Section 15.1.B 14.1(b) of this Agreement. H. Holders (f) If the General Partner permits a Special Redemption with respect to Partnership Class A Common Units held by Xxxxxxx Xxxxxx or any of LTIP Units shall not his Family Members to be entitled effected prior to the end of the applicable Lock-Up Period, each other Qualifying Party shall have the right to have the same ratable share of its Partnership Class A Common Units redeemed in a Special Redemption provided for in Section 15.1 on the same date and on substantially the same terms as the Special Redemption of this Agreementthe Partnership Class A Common Units held by Xxxxxxx Xxxxxx or his applicable Family Member. (g) Notwithstanding anything herein to the contrary, unless and until such LTIP Units have been converted into any Partner may exchange Partnership Common Units (or any other class or series only to the extent such Partner’s Adjusted Capital Account at the time of the exchange represents at least the same percentage of the aggregate Adjusted Capital Account balances of all partners of the Partnership as the percentage interest represented by such Partnership Common Units entitled to such right be exchanged. For the avoidance of Redemption) in accordance with their termsdoubt, the exchanging Partner may designate the portion of his or her Capital Account attributable to one or more Partnership Common Units being exchanged.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Moelis & Co)

Redemption Rights of Qualifying Parties. A. After the Twelve-Month Period applicable Redemption Hold Periodto such Partnership Common Units and subject to Section 11.6D, a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem (a "Redemption") all or a portion of the Partnership Common Units held by such Tendering Qualifying Party (such Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “"Tendered Units") in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the such Qualifying Party (the "Tendering Party") when exercising the Redemption right (the “Tendering Party”)right. The Partnership’s 's obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of until and unless there has been a Notice of Redemption Declination and (ii) before the Business Day following the Cut-Off Date. Regardless of the binding or non-binding nature of a pending Redemption, a Tendering Party shall have no right to receive distributions with respect to any Tendered Units (other than the Cash Amount) paid after delivery of the Notice of Redemption, whether or not the Partnership Record Date for such distribution precedes or coincides with such delivery of the Notice of Redemption; provided, however, that in the event that the General Partner on behalf of the Partnership elects to fund the Cash Amount with the proceeds of an Offering Funding pursuant to Section 8.6D hereof, the Tendering Party's right to receive distributions shall not be suspended as hereinbefore provided and such Tendering Party shall have the right to receive distributions actually made hereunder prior to the date of the closing of the Offering Funding the proceeds of which are used to pay the Cash Amount. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s 's sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A 8.6A hereof, on or before the close of business on the Cut-Off Date, the General Partner REIT Parties may, in the General Partner’s their sole and absolute discretion but subject to the Ownership LimitLimit and the transfer restrictions and other limitations of the Charter, elect to acquire acquire, some or all of the Tendered Units from the Tendering Party (such percentage being referred to as the "Applicable Percentage") of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares AmountConsideration. In making such election, the REIT Parties shall act in a fair, equitable and reasonable manner that neither prefers one group or class of Qualifying Parties over another nor discriminates against a group or class of Qualifying Parties. If the General Partner any REIT Party so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number the Applicable Percentage of the Tendered Units to the General Partner REIT Party in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issuedConsideration. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner Parent REIT may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, view of the REIT Party to effect compliance with the Securities Act. In the event of a purchase of the any Tendered Units by the General Partner a REIT Party pursuant to this Section 15.1.B8.6B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner a REIT Party given on or before the close of business on the Cut-Off Date Date, that the General Partner REIT Party has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B8.6B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice by the REIT Party relates shall not accrue or arise. A number of The REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, Consideration shall be delivered by the General Partner REIT Party as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Bylaws of the Parent REIT, the Securities Act and relevant state securities or "blue sky" laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner a REIT Party pursuant to this Section 15.1.B8.6B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner Parent REIT to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B8.6B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner Parent REIT and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner Parent REIT pursuant to this Section 15.1.B 8.6B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner Parent REIT in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A Sections 8.6A and 15.1.B 8.6B hereof, the no Tendering Parties Party shall have no any rights (including any right to a Redemption pursuant to Section 8.6A) under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights with respect to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner a REIT Party pursuant to Section 15.1.B 8.6B hereof would be in violation of this Section 15.1.C8.6C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner Parent REIT under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A 8.6B hereof. D. If To the General Partner does not elect extent that the REIT Parties decline or fail to acquire the exercise their purchase rights for all Tendered Units pursuant to Section 15.1.B hereof:8.6B hereof following receipt of a Notice of Redemption (a "Declination"): (1) The General Partner shall give notice of such Declination to the Tendering Party on or before the close of business on the Cut-Off Date. The failure of the General Partner to give notice of such Declination by the close of business on the Cut-Off Date shall itself constitute a Declination. (2) Subject to Section 11.6D, the Parent REIT on behalf of the Partnership may elect to raise funds for the payment of all or any percentage of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership contribution by a REIT Party of funds from the proceeds of a private placement or registered public offering (each, an "Offering Funding") by the General Partner Parent REIT of a number of REIT Shares sufficient to purchase or other securities of the Tendered Units Parent REIT ("Offering Funding Shares") or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The . (3) If an Offering Funding has been elected by the General Partner, promptly upon the General Partner 's receipt of the Notice of Redemption and the General Partner giving notice of its Declination, the General Partner shall make give notice (a Capital Contribution "Single Funding Notice") to all Qualifying Parties then holding a Partnership Interest (or an interest therein) and having Redemption rights pursuant to this Section 8.6 and require that all such Qualifying Parties elect whether or not to effect a Redemption of their Partnership Common Units to be funded through an Offering Funding. In the event that any such amounts Qualifying Party elects to effect such a Redemption, it shall give notice thereof and of the number of Partnership for an additional General Partner Interest. Any such contribution shall entitle Common Units to be made subject thereto in writing to the General Partner within ten (10) Business Days after receipt of the Single Funding Notice, and such Qualifying Party shall be treated as a Tendering Party for all purposes of this Section 8.6. In the event that a Qualifying Party does not so elect, it shall be deemed to an equitable Percentage Interest adjustment. (2) If have waived its right to effect a Redemption; provided, however, that the Cash Amount is General Partner shall not paid on or before the Specified Redemption Date, interest shall accrue with respect be required to the Cash Amount acquire Partnership Common Units pursuant to this Section 8.6D more than twice within a calendar year from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate)particular Qualifying Party. E. Notwithstanding the provisions of Section 15.1.B 8.6B hereof, the General Partner a REIT Party shall not, under any circumstances, elect to acquire any Tendered Units in exchange for the REIT Shares Consideration if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 8.6C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner a REIT Party pursuant to Section 15.1.B 8.6B hereof) pursuant to this Section 15.18.6: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B 8.6B hereof shall automaticallymay, and without further action requiredat the election of the General Partner, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand five hundred (1,000500) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand five hundred (1,000500) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Each Tendering Party surrenders (a) may effect a Redemption only once in each fiscal quarter of a twelve-month period, unless otherwise permitted by the General Partner, in its Tendered Units sole and absolute discretion and (b) may not effect a Redemption during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner Parent REIT for a distribution to its stockholders shareholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) Notwithstanding anything herein to the contrary, with respect to any Redemption or acquisition of Tendered Units by a REIT Party pursuant to Section 8.6B hereof, in the event that the General Partner gives notice to all Limited Partners (but excluding any Assignees) then owning Partnership Interests (a "Primary Offering Notice") that the Parent REIT desires to effect a primary offering of its equity securities, then, unless the General Partner otherwise consents, commencement of the actions denoted in Section 8.6D hereof as to an Offering Funding, if any, with respect to any Notice of Redemption thereafter received, whether or not the Tendering Party is a Limited Partner, may be delayed until the earlier of (a) the completion of the primary offering or (b) ninety (90) days following the giving of the Primary Offering Notice. (5) Without the consent of the General Partner, no Tendering Party may effect a Redemption within ninety (90) days following the closing of any prior Offering Funding. (6) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner a REIT Party pursuant to Section 15.1.B 8.6B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (57) The Subject to Section 8.6A, the Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions provision of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A 8.6A hereof or transferred to the General Partner a REIT Party and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 8.6B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner a REIT Party pursuant to Section 15.1.B 8.6B hereof, the Tendering Party shall have no rights as a stockholder shareholder of the General Partner Parent REIT with respect to the REIT Shares issuable in connection with such acquisition. (8) Each Limited Partner covenants and agrees with each REIT Party that acquires Tendered Units that all Tendered Units shall be delivered to the appropriate REIT Party free and clear of all liens, claims and encumbrances whatsoever and should any such liens, claims and/or encumbrances exist or arise with respect to such Tendered Units, the REIT Party shall be under no obligation to acquire the same. Each Limited Partner further agrees that, in the event any state or local property transfer tax is payable as a result of the transfer of its Tendered Units to a REIT Party (or its designee), such Limited Partner shall assume and pay such transfer tax. (9) No Limited Partner may require a Redemption hereunder to the extent that the issuance of REIT Consideration pursuant to Section 8.6B hereof would violate ownership limitations contained in the Charter or would violate any REIT Requirement (notwithstanding that any such Tendered Units could otherwise be acquired for cash pursuant to Section 8.6A hereof). (10) No Tendering Party may require a Redemption hereunder if the issuance of REIT Consideration would be likely to cause the acquisition of such REIT Consideration by such Tendering Party to be "integrated" with any other distribution of common stock of the Parent REIT or of Limited Partnership Interests for purposes of complying with the Securities Act. For purposes of determining compliance with the restrictions set forth in this Section 8.6F, all Partnership Common Units beneficially owned by a Related Party of a Tendering Party shall be considered to be owned or held by such Tendering Party. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner8.6, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner a REIT Party pursuant to Section 15.1.B 8.6B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Partner a REIT Party pursuant to Section 15.1.B 8.6B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(18.6G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Partner a REIT Party pursuant to Section 15.1.B 8.6B hereof, neither the Tendering Party nor, to the best of its knowledge, nor any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Arbor Realty Trust Inc)

Redemption Rights of Qualifying Parties. A. (a) After the Twelve-Month Period applicable Redemption Hold Periodto such Class A Units, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Class A Units held by such Tendering Party (Partnership Common Class A Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the Managing General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Twelve-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); providedprovided that, howeverunless waived by the Parent, that the Managing General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1(e) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the Managing General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) unless and until the date the General Partner notifies the Tendering Party that the General Partner Parent declines or fails to acquire some or all of the Tendered Units under exercise its purchase rights pursuant to Section 15.1.B 15.1(b) hereof following receipt of a Notice of Redemption (a “Declination”) and (ii) until the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the Managing General Partner’s sole and absolute discretion, or if the Cash Amount exceeds $1 million, in immediately available funds, in each case, funds via a federal wire transfer on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. (b) Notwithstanding the provisions of Section 15.1.A 15.1(a) hereof, on or before the close of business on the Cut-Off Date, the General Partner Parent may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to acquire some or all (such percentage being referred to as the “Applicable Acquired Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT the Class A Common Shares Amount calculated based on the portion of Tendered Units it elects to acquire in exchange for Class A Common Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner Parent so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Partner Parent in exchange for a number of REIT Class A Common Shares equal to the product of the REIT Class A Common Shares Amount and the Applicable Acquired Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General PartnerParent’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner Parent pursuant to this Section 15.1.B15.1(b), the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner Parent, given on or before the close of business on the Cut-Off Date Date, that the General Partner Parent has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General PartnerParent’s notice relates shall not accrue or arise. A number of REIT Class A Common Shares equal to the product of the Applicable Acquired Percentage and the REIT Class A Common Shares Amount, if applicable, shall be delivered by the General Partner Parent as duly authorized, validly issued, fully paid and non-assessable REIT Class A Common Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than any restrictions provided in the Ownership LimitParent LLC Agreement, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner Parent pursuant to this Section 15.1.B15.1(b), any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner Parent to register, qualify or list any REIT Class A Common Shares owned or held by such Person, whether or not such REIT Class A Common Shares are issued pursuant to this Section 15.1.B15.1(b), with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner Parent and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Class A Common Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Class A Common Shares issued upon an acquisition of the Tendered Units by the General Partner Parent pursuant to this Section 15.1.B 15.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner Parent in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding (c) In the provisions event of Section 15.1.A and 15.1.B hereof, the Tendering Parties a Declination: (i) The Parent shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition give notice of such Common Units by the General Partner pursuant Declination to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights on or economic interests in REIT Shares otherwise issuable before the close of business on the Cut-Off Date. The failure of the Parent to give notice of such Declination by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If close of business on the General Partner does not elect Cut-Off Date shall be deemed to be an election by the Parent to acquire the Tendered Units pursuant to Section 15.1.B hereof:in exchange for Class A Common Shares. (1ii) The Partnership may elect to shall raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner Parent contribute to the Partnership funds from (i) the proceeds of a registered public offering by the General Partner Parent of REIT Class A Common Shares sufficient to purchase the Tendered Units or (bii) any other sources available to the Parent or its Subsidiaries, unless such requirement is waived by the Tendering Party, in which case the Partnership may fund such payment from any other available sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment). (2iii) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. (d) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof)contrary, with respect to any Redemption (or any tender of Partnership Common Class A Units for Redemption if the Tendered Units are acquired by the General Partner Parent pursuant to Section 15.1.B 15.1(b) hereof) pursuant to this Section 15.1: (1i) All Partnership Common Units acquired by Without the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised Consent of the same number of Partnership Common Units. (2) Subject to the Ownership LimitManaging General Partner, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common 200,000 Class A Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) holds less than one thousand (1,000) Partnership Common 200,000 Class A Units, all of the Partnership Common Class A Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3ii) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution payable to Holders of Class A Units, and before the record date established by the General Partner Parent for a distribution dividend to its stockholders shareholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner Parent elects to acquire any of such Tendered Units in exchange for REIT Class A Common Shares pursuant to Section 15.1.B15.1(b), then such Tendering Party shall pay to the General Partner Parent on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units. (4iii) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner Parent pursuant to Section 15.1.B 15.1(b) hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (5iv) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Class A Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Class A Units for all purposes of this Agreement, until the Specified Redemption Date and until such Partnership Common Tendered Units are either paid for by the Partnership pursuant to Section 15.1.A 15.1(a) hereof or transferred to the General Partner Parent and paid for, for by the issuance of the REIT Shares, Class A Common Shares pursuant to Section 15.1.B hereof on the Specified Redemption Date15.1(b). Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner Parent pursuant to Section 15.1.B 15.1(b) hereof, the Tendering Party shall have no rights as a stockholder shareholder of the General Partner Parent with respect to the REIT Class A Common Shares issuable in connection with such acquisition. G. (e) In connection with an exercise of Redemption rights pursuant to this Section 15.1any Special Redemption, except as otherwise Consented to unless waived by the General PartnerParent, the Tendering Party shall submit the following to the General PartnerParent, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the Managing General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party Redemption or the issuance and sale of REIT Class A Common Shares to the Tendering Party pursuant to Section 15.1.B 15.1(b) of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Five Point Holdings, LLC)

Redemption Rights of Qualifying Parties. A. After the expiration of the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right from time to time (subject to the terms and conditions set forth herein) (the “Redemption Right”) to require the Partnership to redeem all or a portion of the Common Units held by a Qualifying Party (Common Units tendered for Redemption, “Tendered Common Units”) in exchange for cash from the Partnership as described in this Section 15.1 (a “Redemption”), subject to the right of the REIT Limited Partner to acquire some or all of the Tendered Common Units under Section 15.1.C pursuant to an Election Notice. A Qualifying Party may exercise the Redemption Right (a “Tendering Party”) by delivering to the General Partner a Common Unit Notice of Redemption; provided, however, without the written consent of the General Partner, no Common Unit Notice of Redemption may seek the Redemption of less than one thousand (1,000) Common Units (or, if a Tendering Party holds (as a Common Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Common Units, all of the Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption DateParty). The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Common Units at the request of the Holder thereof Qualifying Party prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms 62 and conditions set forth hereinherein (including the expiration of the applicable Specified Redemption Date)) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.E(4) of this Agreement. Any Redemption shall be exercised pursuant to Notwithstanding the receipt of a Common Unit Notice of Redemption delivered to Redemption, the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, Redemption shall not arise or be binding against the Partnership until the earlier of (ia) the date the General REIT Limited Partner notifies the Tendering Party that the General Partner it declines to acquire some or all of the Tendered Common Units under Section 15.1.B 15.1.C hereof following receipt of a Notice of Redemption and (iib) the Business Day following the Cut-Off Date. . B. In the event of the REIT Limited Partner fails to timely deliver an Election Notice or the Applicable Percentage is less than 100% with respect to a Redemption, the Cash Amount Partnership shall be delivered as a certified or bank check payable pay to the Tendering Party on or before the Specified Redemption Date an amount in cash (or, in the General REIT Limited Partner’s sole and absolute discretion, in immediately available funds) equal to the product of (i) 100% minus the Applicable Percentage, in each case, on or before multiplied by (ii) the Specified Redemption DateCash Amount; provided, however, that the General Partner Partner, upon written notice to the Tendering Party, may elect to cause delay the Specified Redemption Date to be delayed for up to an additional 60 90 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General event the Partnership has a bona fide intention to generate all or part of such cash (a) by the REIT Limited Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all issuance of NAV REIT Common Shares (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote CMCT in exchange for the proceeds of an offering of securities of CMCT) and contribution of all or consent, receive dividends, and exercise rights, as a portion of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute proceeds therefrom to the Partnership funds from the proceeds of a registered public offering by the General in exchange for additional REIT Limited Partner of REIT Shares sufficient to purchase the Tendered Units or Interests, (b) from by incurring additional Debt and/or (c) by selling any other sources (including, but not limited Property. In no event shall any interest be due or payable with respect to, the sale of or otherwise accrue on, any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, amount payable under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.15.1.B.

Appears in 1 contract

Samples: Limited Partnership Agreement (Creative Media & Community Trust Corp)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold PeriodSubject to any Non-Managing Member Ancillary Agreement, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership Company to redeem all or a portion of the Partnership Membership Common Units held by such Tendering Qualifying Party (Partnership Membership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner Managing Member by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The PartnershipCompany’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of Company (i) the date the General Partner notifies the Tendering Party that the General Partner until and unless CLNS Credit declines or fails to acquire some or all of the Tendered Units under exercise its purchase rights pursuant to Section 15.1.B hereof following receipt of a Notice of Redemption (a “Declination”) and (ii) unless CLNS Credit agrees otherwise, until the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General PartnerManaging Member’s sole and absolute discretion, in immediately available funds, in each case, funds on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner CLNS Credit may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, (the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any percentage of the Tendered Units for REIT Sharesso elected to be acquired, the General Partner shall issue and deliver such REIT Shares to “Applicable Percentage”) from the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the product of the REIT Shares AmountAmount and the Applicable Percentage. If the General Partner CLNS Credit so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Partner CLNS Credit in exchange for a number of Class A REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner CLNS Credit may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General PartnerCLNS Credit’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner CLNS Credit pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership Company to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner CLNS Credit, given on or before the close of business on the Cut-Off Date Date, that the General Partner CLNS Credit has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership Company to effect a Redemption of the Tendered Units as to which the General PartnerCLNS Credit’s notice relates shall not accrue or arise. A number of Class A REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner CLNS Credit as duly authorized, validly issued, fully paid and non-assessable Class A REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Securities Act and relevant state securities or “blue sky” laws. If the amount of Class A REIT Shares to be issued in exchange for the Tendered Units is not a whole number of Class A REIT Shares, the Tendering Party shall be paid (i) that number of Class A REIT Shares that equals the nearest whole number less than such amount plus (ii) an amount of cash that CLNS Credit determines, in its reasonable discretion, to represent the fair value of the remaining fractional Class A REIT Share that would otherwise be payable to the Tendering Party. Neither any Tendering Party whose Tendered Units are acquired by the General Partner CLNS Credit pursuant to this Section 15.1.B, any PartnerMember, any Assignee nor any other interested Person shall have any right to require or cause the General Partner CLNS Credit to register, qualify or list any Class A REIT Shares owned or held by such Person, whether or not such Class A REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement (including any Non-Managing Member Ancillary Agreement) between the General Partner CLNS Credit and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such Class A REIT Shares and Rights for all purposes, including, without limitation, including rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. Class A REIT Shares issued upon an acquisition of the Tendered Units by the General Partner CLNS Credit pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner CLNS Credit in good faith determines to be necessary or advisable in order to ensure compliance with such lawslaws and the Charter. C. Notwithstanding the provisions of Section 15.1.A Sections 15.1.A, 15.1.B and 15.1.B 15.1.J hereof, (i) no Person shall be entitled to effect a Redemption for cash or an exchange for Class A REIT Shares to the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by extent the Charter and shall have no rights ownership or right to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner acquire Class A REIT Shares pursuant to Section 15.1.B hereof would such exchange on the Specified Redemption Date could cause any such Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.Bany other Person) to violate the Ownership Limit. To the extent that , after giving effect to any attempted Redemption waivers or acquisition modifications of the Tendered Units such restrictions by the General Partner pursuant to Section 15.1.B hereof would be in violation Board of this Section 15.1.C, it shall be null and void ab initioDirectors, and (ii) no Person shall have any rights under this Agreement to acquire Class A REIT Shares which would otherwise be prohibited under the Charter, after giving effect to any waivers or modifications of such restrictions by the Board of Directors. D. In the event of a Declination: (1) CLNS Credit shall give notice of such Declination to the Tendering Party shall not acquire any rights on or economic interests in REIT Shares otherwise issuable before the close of business on the Cut-Off Date. The failure of CLNS Credit to give notice of such Declination by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If close of business on the General Partner does not elect Cut-Off Date shall be deemed to be an election by CLNS Credit to acquire the Tendered Units pursuant to Section 15.1.B hereof:in exchange for REIT Shares. (12) The Partnership Company may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner CLNS Credit contribute to the Partnership Company funds from the proceeds of a registered public offering by the General Partner CLNS Credit of Class A REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, including the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustmentCompany. (23) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B hereof or Section 15.1.J hereof, the General Partner shall not, under any circumstances, elect to acquire any if CLNS Credit’s acquisition of Tendered Units in exchange for the REIT Shares if such acquisition Amount would be prohibited under the Charter, then (i) CLNS Credit shall not elect to acquire such Tendered Units, and (ii) the Company shall not be obligated to effect a Redemption of such Tendered Units. For the avoidance of doubt, unless CLNS Credit’s acquisition of Tendered Units in exchange for the REIT Shares Amount would be prohibited under the Charter, if Tendered Units are not exchanged for Class A REIT Shares, then the Cash Amount will be paid to the Tendering Party in accordance with the terms of Section 15.1.A hereof. F. Each Non-Managing Member covenants and agrees that all Membership Common Units delivered for redemption shall be delivered to the Company or CLNS Credit, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither CLNS Credit nor the Company shall be under any obligation to acquire Membership Common Units that are or may be subject to any liens. Each Non-Managing Member further agrees that, if any stamp, recording, documentary or similar tax is payable with respect to the Membership Common Units as a result of the transfer thereof to the Company or the CLNS Credit, such Tendering Party shall assume and pay such tax. G. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Membership Common Units for Redemption if the Tendered Units are acquired by the General Partner CLNS Credit pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by Without the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised consent of the same number of Partnership Common Units. (2) Subject to the Ownership LimitManaging Member, no Tendering Party may effect a Redemption for less than one thousand Five Hundred (1,000500) Partnership Membership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) holds less than one thousand Five Hundred (1,000500) Partnership Membership Common Units, all of the Partnership Membership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (32) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Company Record Date with respect to a distribution payable to Holders of Membership Common Units, and before the record date established by the General Partner CLNS Credit for a distribution dividend to its stockholders of some or all of its portion of such Partnership Company distribution, and (ii) the General Partner elects to acquire CLNS Credit acquires any of such Tendered Units in exchange for Class A REIT Shares pursuant to Section 15.1.B15.1.B on or before the record date for CLNS Credit dividends, then such Tendering Party shall pay to the General Partner CLNS Credit on the Specified Redemption Date an amount in cash equal to the portion of the Partnership Company distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units acquired by CLNS Credit. (43) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner CLNS Credit pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976. (54) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Membership Common Units subject to any Redemption, and be treated as a Limited Partner Member or an Assignee, as applicable, with respect to such Partnership Membership Common Units for all purposes of this Agreement, until the Specified Redemption Date and until such Partnership Common Tendered Units are either paid for by the Partnership Company pursuant to Section 15.1.A hereof or transferred to the General Partner CLNS Credit and paid for, by the issuance of the Class A REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. 15.1.B. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner CLNS Credit pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner CLNS Credit with respect to the REIT Shares issuable in connection with such acquisition. G. In H. If CLNS Credit shall be a party to any Transaction, each Membership Common Unit that is not converted into the right to receive cash, securities or other property or any combination thereof in connection with an exercise such Transaction shall thereafter be convertible into the kind and amount of Redemption rights pursuant to this Section 15.1cash, except as otherwise Consented to securities or other property or any combination thereof receivable upon the consummation of such Transaction by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice a holder of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), that number of REIT Shares by into which one Membership Common Unit was convertible immediately prior to such Transaction, assuming such holder of REIT Shares (i) such Tendering Party is not a Constituent Person or an Affiliate of a Constituent Person and (ii) failed to exercise his or her rights of the election, if any, as to the best kind and amount of their knowledge cash, securities or other property or any Related Party and (b) representing thatcombination thereof receivable upon such Transaction; provided that if the cash, after giving effect securities or other property or any combination thereof receivable upon such Transaction is not the same for each REIT Share held immediately prior to the Redemption such Transaction by other than a Constituent Person or an acquisition Affiliate thereof and in respect of which such rights of election shall not have been exercised (“Non-Electing Shares”), then for purposes of this Section 15.1.H the kind and amount of cash, securities or other property or any combination thereof receivable upon such Transaction by each Non-Electing Share shall be deemed to be the kind and amount so receivable per share by a plurality of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units Non-Electing Shares. CLNS Credit shall not be entitled a party to any Transaction unless the right terms of Redemption provided for in Section 15.1 such Transaction are consistent with the provisions of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their termsSection 15.1.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Colony NorthStar Credit Real Estate, Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Fourteen-Month Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as "Tendered Units") in exchange (a "Redemption") for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the Managing General Partner’s 's sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Fourteen-Month Period (subject to the terms and conditions set forth herein) (a "Special Redemption"); provided, however, that the Managing General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the Managing General Partner and the Special Limited Partner by the Qualifying Party when exercising the Redemption right (the "Tendering Party"). The Partnership’s 's obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the Managing General Partner Partner, on behalf of the Partnership, notifies the Tendering Party that the General Partnership declines to cause the Special Limited to Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the Managing General Partner’s 's sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that tenth (10th) Business Day following the date on which the Managing General Partner may elect to cause receives a Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountTendering Party. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner Partnership may, in the Managing General Partner’s 's sole and absolute discretion but subject to the Ownership LimitLimit and the transfer restrictions and other limitations of the Charter, elect to cause the Special Limited Partner to acquire some or all (such percentage being referred to as the "Applicable Percentage") of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partnership chooses to cause the Special Limited Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the Managing General Partner Partner, on behalf of the Partnership, shall give written notice thereof to the Special Limited Partner and the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partnership elects to cause the Special Limited Partner elects to acquire any of the Tendered Units for REIT Shares, the Managing General Partner, on behalf of the Partnership, shall direct the Special Limited Partner shall to issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Special Limited Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s 's exercise of its Redemption right with respect to such Tendered Units Units, and (2) such transaction shall be treated, for federal Federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Special Limited Partner in exchange for the REIT Shares Amount. If the General Partner Partnership so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Special Limited Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Special Limited Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Special Limited Partner’s 's view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the Managing General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the General Partner Partnership has elected to cause the Special Limited Partner to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the Managing General Partner’s 's notice relates shall not accrue or arise. A number of REIT Shares equal to the The product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Special Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Securities Act and relevant state securities or "blue sky" laws. Neither any Tendering Party whose Tendered Units are acquired by the General Special Limited Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Special Limited Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Special Limited Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Special Limited Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights with respect to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Special Limited Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner Partnership does not elect exercise its right to cause the Special Limited Partner to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Special Limited Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Special Limited Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. Any proceeds from a public offering that are in excess of the Cash Amount shall be for the sole benefit of the Special Limited Partner. The General Special Limited Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Limited Partner Interest. Any such contribution shall entitle the General Special Limited Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner Partnership shall not, under any circumstances, elect to cause the Special Limited Partner to acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Special Limited Partner's Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, withoutunless, in each case, otherwise agreed to by the Consent of the Managing General PartnerPartner in its sole and absolute discretion. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Special Limited Partner for a distribution to its stockholders shareholders of some or all of its portion of such Partnership distribution, and (ii) the General Partnership elects to cause the Special Limited Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the Managing General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Special Limited Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder shareholder of the General Special Limited Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the Managing General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its their knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, nor to the best of its knowledge, their knowledge any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and. (4) In connection with any Special Redemption, the General Special Limited Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Partnership, the Managing General Partner or the General Special Limited Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Douglas Emmett Inc)

Redemption Rights of Qualifying Parties. A. a. After the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) (the “Redemption Right”) to require the Partnership to redeem all or a portion of the Partnership Common applicable OP Units held by such Tendering Party (Partnership Common OP Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder holder thereof prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right Right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to require the Initial Limited Partner to acquire some or all of the Tendered Units under Section 15.1.B 15.1(b) hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. b. Notwithstanding the provisions of Section 15.1.A 15.1(a) hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to require the Initial Limited Partner to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Sharesshares of Common Stock or the Cash Amount payable on the Specified Redemption Date. If the General Partner elects to require the Initial Limited Partner to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to require the Initial Limited Partner to acquire any of the Tendered Units for REIT Sharesshares of Common Stock, the General Initial Limited Partner shall issue and deliver such REIT Shares Common Stock to the Tendering Party pursuant to the terms of this Section 15.1.B15.1(b), in which case (1) the General Initial Limited Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right Right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Initial Limited Partner in exchange for the REIT Shares Common Stock Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Initial Limited Partner in exchange for a number of REIT Shares shares of Common Stock equal to the product of the REIT Shares Common Stock Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Initial Limited Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Initial Limited Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Initial Limited Partner pursuant to this Section 15.1.B15.1(b), the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to require the Initial Limited Partner to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares shares of Common Stock equal to the product of the Applicable Percentage and the REIT Shares Common Stock Amount, if applicable, shall be delivered by the General Initial Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares shares of Common Stock and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Initial Limited Partner pursuant to this Section 15.1.B15.1(b), any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Initial Limited Partner to register, qualify or list any REIT Shares Common Stock owned or held by such Person, whether or not such REIT Shares shares of Common Stock are issued pursuant to this Section 15.1.B15.1(b), with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Initial Limited Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner Shares of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares Common Stock issued upon an acquisition of the Tendered Units by the General Initial Limited Partner pursuant to this Section 15.1.B 15.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. c. Notwithstanding the provisions of Section 15.1.A 15.1(a) and 15.1.B 15.1(b) hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter Articles of Incorporation and shall have no rights to require the Partnership to redeem Common OP Units if the acquisition of such Common OP Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof would be in violation of this Section 15.1.C15.1(c), it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares the shares of Common Stock otherwise issuable by the General Initial Limited Partner under Section 15.1.B 15.1(b) hereof or cash otherwise payable under Section 15.1.A 15.1(a) hereof. D. d. If the General Partner does not elect to require the Initial Limited Partner to acquire the Tendered Units pursuant to Section 15.1.B 15.1(b) hereof: (1i) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Initial Limited Partner contribute to the Partnership funds from the proceeds of a registered public offering Offering by the General Initial Limited Partner of REIT Shares shares of Common Stock sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Initial Limited Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner InterestPartnership Interest consistent with the provisions of Article 4. Any such contribution shall entitle the General Initial Limited Partner to an equitable Percentage Interest adjustment. (2ii) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. e. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 15.1(c) hereof), with respect to any Redemption (or any tender of Partnership Common OP Units for Redemption if the Tendered Units are acquired by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof) pursuant to this Section 15.1: (1i) All Partnership Common OP Units acquired by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof shall automatically, and without further action required, be converted into and deemed to be a General an Initial Limited Partner Partnership Interest comprised of the same number of Partnership Common OP Units. (2ii) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common OP Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common OP Units, all of the Partnership Common OP Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3iii) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Initial Limited Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to require the Initial Limited Partner to acquire any of such Tendered Units in exchange for REIT Shares shares of Common Stock pursuant to Section 15.1.B15.1(b), such Tendering Party shall pay to the General Initial Limited Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Sharesshares of Common Stock, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Sharesshares of Common Stock. (4iv) The consummation of such Redemption (or an acquisition of Tendered Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5v) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common OP Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common OP Units for all purposes of this Agreement, until such Partnership Common OP Units are either paid for by the Partnership pursuant to Section 15.1.A 15.1(a) hereof or transferred to the General Initial Limited Partner and paid for, by the issuance of the REIT SharesCommon Stock, pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof, the Tendering Party shall have no rights as a stockholder of the General Initial Limited Partner with respect to the REIT Shares shares of Common Stock issuable in connection with such acquisition. G. f. In connection with an exercise of Redemption rights Rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1i) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares shares of Common Stock by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares shares of Common Stock in violation of the Ownership Limit; (2ii) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares shares of Common Stock prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date; (3iii) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares shares of Common Stock by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(115.1(f)(i) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares shares of Common Stock in violation of the Ownership Limit; and (4iv) In connection with any Special Redemption, the General Initial Limited Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Partnership, the General Partner or the General Initial Limited Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares of Common Stock to the Tendering Party pursuant to Section 15.1.B 15.1(b) of this Agreement. H. Holders g. The Qualifying Party shall be solely responsible for the payment of LTIP Units shall not be entitled to the right of Redemption provided for any real estate transfer taxes imposed in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or connection with any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Phillips Edison & Company, Inc.)

Redemption Rights of Qualifying Parties. A. After the Subject to any applicable Redemption Hold Restricted Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Restricted Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner and the Parent by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner Partner, on behalf of the Partnership, notifies the Tendering Party that the General Partner declines Partnership has declined to require the Parent to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that tenth (10th) Business Day following the date on which the General Partner may elect to cause receives a Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountTendering Party. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner Partnership may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to require the Parent to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Parent Shares. If the General Partner Partnership elects to require the Parent to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner Partnership shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner Partnership elects to require the Parent to acquire any of the Tendered Units for REIT Parent Shares, the General Partner Parent shall issue and deliver such REIT Parent Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner Parent shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner Parent in exchange for the REIT Parent Shares Amount. If the General Partner Partnership so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner Parent in exchange for a number of REIT Parent Shares equal to the product of the REIT Parent Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner Parent may reasonably require in connection with the application of the Parent Share Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General PartnerParent’s view, to effect compliance with the Securities Act. In the event of a an election by the Partnership to require the Parent to purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner Partnership given on or before the close of business on the Cut-Off Date that the General Partner Partnership has elected to require the Parent to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Parent Shares equal to the product of the Applicable Percentage and the REIT Parent Shares Amount, if applicable, shall be delivered by the General Partner Parent as duly authorized, validly issued, fully paid and non-assessable REIT Parent Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Parent Share Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner Parent pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner Parent to register, qualify or list any REIT Parent Shares owned or held by such Person, whether or not such REIT Parent Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner Parent and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Parent Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Parent Shares issued delivered upon an acquisition of the Tendered Units by the General Partner Parent pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner Parent in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Parent Charter and shall have no rights to require the Partnership to redeem Common Tendered Units or require the Parent to acquire Tendered Units if such a redemption or the acquisition of such Common Tendered Units by the General Partner Parent pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Parent Share Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner Parent pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, to the fullest extent permitted by law, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Parent Shares otherwise issuable deliverable by the General Partner Parent under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner Partnership does not elect to require the Parent to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may may, in the sole and absolute discretion of the General Partner, elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner Parent contribute to the Partnership funds from the proceeds of a registered public offering sale by the General Partner Parent of REIT Parent Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner Parent shall make a Capital Contribution of any such amounts to the Partnership in exchange for an additional General Partnership Units, and the Partnership is hereby authorized from time to time to issue such additional Partnership Units in consideration therefor without any further act, approval or vote of any Partner Interestor other Persons. Any such contribution shall entitle the General Partner Parent to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner Parent shall not, under any circumstances, elect to not acquire any Tendered Units in exchange for REIT Parent Shares if such acquisition exchange would be prohibited under the CharterParent Charter or result in any violation of the Parent Share Ownership Limit. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner Parent pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner Parent pursuant to Section 15.1.B hereof shall automaticallyshall, and without further action required, be converted into and deemed continue to be a General Partner Limited Partner’s Partnership Interest comprised of the same number of Partnership Common Units. (2) Subject to the Parent Share Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner, which may be given or withheld in its sole and absolute discretion. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner Parent for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner Partnership elects to require the Parent to acquire any of such Tendered Units in exchange for REIT Parent Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner Parent on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Parent Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Parent Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner Parent pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner Parent and paid for, by the issuance delivery of the REIT Parent Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner Parent pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner Parent with respect to the REIT Parent Shares issuable deliverable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, in its sole and absolute discretion, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Parent Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner Parent pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Parent Shares in violation of the Parent Share Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Parent Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner Parent pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Partner Parent pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Parent Shares by the Tendering Party and to the best of its their knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) that after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Partner Parent pursuant to Section 15.1.B hereof, neither the Tendering Party nor, nor to the best of its knowledge, their knowledge any other Person Related Party shall own REIT Parent Shares in violation of the Parent Share Ownership Limit; and (4) In connection with any Special Redemption, the General Partner Parent shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause Parent, the Partnership or Partnership, the General Partner or any Parent Subsidiary Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Parent Shares to the Tendering Party pursuant to the Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Brixmor Operating Partnership LP)

Redemption Rights of Qualifying Parties. A. (a) After the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership Company to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership Company may, in the General PartnerManaging Member’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner Managing Member first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Company or the General Partner Managing Member to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B 15.1(b) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner Managing Member by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The PartnershipCompany’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership Company until the earlier of (i) the date the General Partner Managing Member notifies the Tendering Party that the General Partner Managing Member declines to acquire some or all of the Tendered Units under Section 15.1.B 15.1(b) hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General PartnerManaging Member’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner Managing Member may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner Managing Member to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. (b) Notwithstanding the provisions of Section 15.1.A 15.1(a) hereof, on or before the close of business on the Cut-Off Date, the General Partner Managing Member may, in the General PartnerManaging Member’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner Managing Member elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the General Partner Managing Member shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner Managing Member elects to acquire any of the Tendered Units for REIT Shares, the General Partner Managing Member shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B15.1(b), in which case (1i) the General Partner Managing Member shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2ii) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner Managing Member in exchange for the REIT Shares Amount. If the General Partner Managing Member so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner Managing Member in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner Managing Member may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner Managing Member to cause additional REIT Shares to be issued. The Tendering Party shall submit (iA) such information, certification or affidavit as the General Partner Managing Member may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (iiB) such written representations, investment letters, legal opinions or other instruments necessary, in the General PartnerManaging Member’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner Managing Member pursuant to this Section 15.1.B15.1(b), the Tendering Party shall no longer have the right to cause the Partnership Company to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner Managing Member given on or before the close of business on the Cut-Off Date that the General Partner Managing Member has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the obligation of the Partnership Company to effect a Redemption of the Tendered Units as to which the General PartnerManaging Member’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner Managing Member as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner Managing Member pursuant to this Section 15.1.B15.1(b), any PartnerMember, any Assignee nor any other interested Person shall have any right to require or cause the General Partner Managing Member to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B15.1(b), with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner Managing Member and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner Managing Member pursuant to this Section 15.1.B 15.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner Managing Member determines to be necessary or advisable in order to ensure compliance with such laws. C. (c) Notwithstanding the provisions of Section 15.1.A 15.1(a) and 15.1.B 15.1(b) hereof, the : (i) The Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership Company to redeem Common Units if the acquisition of such Common Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof would be in violation of this Section 15.1.C15.1(c)(i), to the fullest extent permitted by law, it shall be null and void ab initiovoid, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner Managing Member under Section 15.1.B 15.1(b) hereof or cash otherwise payable under Section 15.1.A 15.1(a) hereof. D. (ii) No Tendering Party may exercise its Redemption right pursuant to this Agreement more than one (1) time during any fiscal quarter of the Company. (iii) No Tendering Party may deliver a Notice of Redemption during the period from December 1 of any year through January 1 of the following year, nor shall any Specified Redemption Date occur during the period from December 21 of any year through January 22 of the following year. (d) If the General Partner Managing Member does not elect to acquire the Tendered Units pursuant to Section 15.1.B 15.1(b) hereof: (1i) The Partnership Company may elect to raise funds for the payment of the Cash Amount either (aA) by requiring that the General Partner Managing Member contribute to the Partnership Company funds from the proceeds of a registered public offering by the General Partner Managing Member of REIT Shares sufficient to purchase the Tendered Units or (bB) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the PartnershipCompany. Any proceeds from a public offering that are in excess of the Cash Amount shall be for the sole benefit of the Managing Member. The General Partner Managing Member shall make a Capital Contribution of any such amounts to the Partnership Company for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Managing Member Interest adjustmentin accordance with Section 4.3(e). (2ii) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. (e) Notwithstanding the provisions of Section 15.1.B 15.1(b) hereof, the General Partner Managing Member shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. (f) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 15.1(c) hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof) pursuant to this Section 15.1: (1i) All Partnership Common Units acquired by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Managing Member Interest comprised of the same number of Partnership Common Units. (2ii) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner Member or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General PartnerManaging Member. (3iii) If (iA) a Tendering Party surrenders its Tendered Units during the period after the Partnership Company Record Date with respect to a distribution and before the record date established by the General Partner Managing Member for a distribution to its stockholders of some or all of its portion of such Partnership Company distribution, and (iiB) the General Partner Managing Member elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B15.1(b), such Tendering Party shall pay to the General Partner Managing Member on the Specified Redemption Date an amount in cash equal to the portion of the Partnership Company distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4iv) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the XxxxHxxx-Xxxxx-Xxxxxx Act. (5v) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner Member or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership Company pursuant to Section 15.1.A 15.1(a) hereof or transferred to the General Partner Managing Member and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof, the Tendering Party shall have no rights as a stockholder of the General Partner Managing Member with respect to the REIT Shares issuable in connection with such acquisition. G. (g) In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General PartnerManaging Member, the Tendering Party shall submit the following to the General PartnerManaging Member, in addition to the Notice of Redemption: (1i) A written affidavit, dated the same date as the Notice of Redemption, (aA) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (iI) such Tendering Party and (iiII) to the best of their knowledge any Related Party and (bB) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2ii) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date; (3iii) An undertaking to certify, at and as a condition of the closing of (iA) the Redemption or (iiB) the acquisition of Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date, that either (aI) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(115.1(g)(i) or (bII) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4iv) In connection with any Special Redemption, the General Partner Managing Member shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Company or the General Partner Managing Member to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B 15.1(b) of this Agreement. H. (h) Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Operating Agreement (Healthpeak Properties, Inc.)

Redemption Rights of Qualifying Parties. A. (a) After the applicable Redemption Hold first Twelve-Month Period, a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (such Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of until and unless there has been a Notice of Redemption Declination and (ii) before the Business Day following the Cut-Off Date. Regardless of the binding or non-binding nature of a pending Redemption, a Tendering Party shall have no right to receive distributions with respect to any Tendered Units (other than the Cash Amount) paid after delivery of the Notice of Redemption, whether or not the Partnership Record Date for such distribution precedes or coincides with such delivery of the Notice of Redemption; provided, however, that in the event that the General Partner on behalf of the Partnership elects to fund the Cash Amount with the proceeds of an Offering Funding pursuant to Section 8.6(d) hereof, the Tendering Party’s right to receive distributions shall not be suspended as hereinbefore provided and such Tendering Party shall have the right to receive distributions actually made hereunder prior to the date of the closing of the Offering Funding whose proceeds are used to pay the Cash Amount. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that later of (i) the tenth (10th) Business Day following the date on which the General Partner may elect to cause receives a Notice of Redemption from the Specified Redemption Date to be delayed for up to Tendering Party or (ii) the tenth (10th) Business Day following the closing of an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountOffering Funding. B. (b) Notwithstanding the provisions of Section 15.1.A 8.6(a) hereof, a Limited Partner that exercises the Redemption Right shall be deemed to have offered to sell the Tendered Units to the General Partner, and on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT the Shares Amount calculated based on the portion of Tendered Units it elects to acquire in exchange for Shares. In making such election, the General Partner shall act in a fair, equitable and reasonable manner that neither prefers one group or class of Qualifying Parties over another nor discriminates against a group or class of Qualifying Parties. If the General Partner elects shall exercise its right to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire purchase any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B8.6(b), the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Applicable Percentage of such Tendered Units pursuant to Section 8.6(a), and, upon notice to the Tendering Party by the General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B8.6(b), the obligation of the Partnership to effect a Redemption pursuant to Section 8.6(a) of the such Applicable Percentage of such Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the The product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT accessible Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, restrictions provided in the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B8.6(b), any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B8.6(b), with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B 8.6(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. The parties agree to treat the exchange of Tendered Units for Shares pursuant to this Section 8.6(b) as a sale or exchange for all tax purposes. C. (c) Notwithstanding the provisions of Section 15.1.A 8.4(a) and 15.1.B hereof8.4(b), a Limited Partner shall not be entitled to exercise the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited Redemption Right if the delivery of Shares to such Partner on the Specified Redemption Date by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner Company pursuant to Section 15.1.B hereof would cause any Person 8.4(b) (including the Tendering Partner and regardless of whether or not the General Partner Company would exercise, or would be permitted to exercise, in fact exercise its rights under Section 15.1.B8.4(b)) to violate would cause the Ownership Limit. To the extent that any attempted Redemption or acquisition of Shares by such Partner to be “integrated” with any other distribution of Shares or Partnership Common Units for purposes of complying with the Tendered Units by registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion, may waive the restriction on redemption set forth in this Section 8.4(c). (d) In the event that the General Partner declines or fails to exercise its purchase rights pursuant to Section 15.1.B 8.6(b) hereof would be in violation following receipt of this Section 15.1.C, it a Notice of Redemption (a “Declination”): (i) The General Partner shall be null and void ab initio, and give notice of such Declination to the Tendering Party shall not acquire any rights on or economic interests in REIT Shares otherwise issuable by before the close of business on the Cut-Off Date. The failure of the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereofto give notice of such Declination by the close of business on the Cut-Off Date shall itself constitute a Declination. D. If (ii) Subject to Section 11.6(d), the General Partner does not elect to acquire on behalf of the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that contribution by the General Partner contribute to the Partnership of funds from the proceeds of a private placement or registered public offering (each, an “Offering Funding”) by the General Partner of REIT a number of Shares sufficient to purchase or other securities of the Tendered Units General Partner (“Offering Funding Shares”) or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. (iii) Promptly upon the General Partner’s receipt of the Notice of Redemption and the General Partner giving notice of its Declination, the General Partner may, in its sole and absolute discretion, give notice (a “Single Funding Notice”) to all Qualifying Parties then holding a Partnership Interest (or an interest therein) and having Redemption rights pursuant to this Section 8.6 and require that all such Qualifying Parties elect whether or not to effect a Redemption of their Partnership Common Units to be funded through an Offering Funding (if an Offering Funding has been elected by the General Partner) or otherwise. In the event that any such Qualifying Party elects to effect such a Redemption, it shall give notice thereof and of the number of Partnership Common Units to be made subject thereto in writing to the General Partner within ten (10) Business Days after receipt of the Single Funding Notice, and such Qualifying Party shall be treated as a Tendering Party for all purposes of this Section 8.6. In the event that a Qualifying Party does not so elect, it shall be deemed to have waived its right to effect a Redemption for the current quarterly period. Any proceeds from an Offering Funding that are in excess of the Cash Amount shall be for the sole benefit of the General Partner. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest and/or Limited Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2e) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal [intentionally omitted] (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. f) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 8.6(c) hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B 8.6(b) hereof) pursuant to this Section 15.18.6: (1i) All The General Partner may elect in its sole discretion, to hold Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a 8.6(b) as part of its General Partner Interest comprised or as a part of its Limited Partner Interest, or in any combination thereof and such ownership will be reflected on amendments to Exhibit A to the same number of Partnership Common UnitsAgreement as in effect from time to time. (2ii) Subject to the Ownership Limit, no No Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, withoutunless, in each case, the Consent of otherwise agreed to by the General PartnerPartner in its sole and absolute discretion. (3iii) If (i) a Each Tendering Party surrenders its Tendered Units (a) may effect a Redemption only once in each fiscal quarter of a Twelve-Month Period and (b) may not effect a Redemption during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution. (iv) Notwithstanding anything herein to the contrary, and (ii) with respect to any Redemption or acquisition of Tendered Units by the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B8.6(b) hereof, such Tendering Party shall pay to in the event that the General Partner on gives notice to all Limited Partners (but excluding any Assignees) then owning Partnership Interests (a “Primary Offering Notice”) that the Specified Redemption Date an amount in cash equal General Partner desires to effect a primary offering of its equity securities (other than primarily for the portion purpose of raising funds for payment of the Partnership distribution in respect Cash Amount) then, unless the General Partner otherwise consents, commencement of the Tendered Units exchanged for REIT Sharesactions denoted in Section 8.6(d) hereof as to an Offering Funding, insofar as such distribution relates if any, with respect to any Notice of Redemption thereafter received, whether or not the same period for which such Tendering Party would receive is a distribution in respect Limited Partner, may be delayed until the earlier of such REIT Shares(a) the completion of the primary offering or (b) ninety (90) days following the giving of the Primary Offering Notice. (4v) Without the Consent of the General Partner, no Tendering Party may effect a Redemption within ninety (90) days following the closing of any prior Offering Funding. (vi) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B 8.6(b) hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended, and shall be subject to any time delay restrictions imposed by the General Partner as to the effective date of any Redemption, as determined by the General Partner in good faith in consultation with, and in reliance on the advice of, its tax professionals (with the General Partner being required to use its reasonable commercial efforts to impose such restrictions to avoid publicly traded partnership status at all times). (5vii) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions provision of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A 8.6(a) hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 8.6(b) hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6(b) hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. For purposes of determining compliance with the restrictions set forth in this Section 8.6(f), all Partnership Common Units beneficially owned by a Related Party of a Tendering Party shall be considered to be owned or held by such Tendering Party. G. (g) In connection with an exercise of Redemption rights pursuant to this Section 15.18.6, except as otherwise Consented to the Tendering Party shall, if requested by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A : a written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6(b) hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Meruelo Maddux Properties, Inc.)

Redemption Rights of Qualifying Parties. A. After the Twelve-Month Period applicable Redemption Hold Periodto such Partnership Common Units, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Twelve-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); providedprovided that, howeverunless waived by the Special Limited Partner, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) until and unless the date the General Partner notifies the Tendering Party that the General Special Limited Partner declines or fails to acquire some or all of the Tendered Units under exercise its purchase rights pursuant to Section 15.1.B hereof following receipt of a Notice of Redemption (a “Declination”) and (ii) until the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, funds on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Special Limited Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for the REIT Shares Amount calculated based on the portion of Tendered Units it elects to acquire in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Special Limited Partner so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Special Limited Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Special Limited Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Special Limited Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner Special Limited Partner, given on or before the close of business on the Cut-Off Date Date, that the General Special Limited Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Special Limited Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Special Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Special Limited Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Special Limited Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Special Limited Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Special Limited Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A Sections 15.1.A, 15.1.B and 15.1.B 15.1.H hereof, (i) no Person shall be entitled to effect a Redemption for cash or an exchange for REIT Shares to the Tendering Parties extent the ownership or right to acquire REIT Shares pursuant to such exchange on the Specified Redemption Date could cause such Person (or any other Person) to violate the restrictions on ownership and transfer of REIT Shares set forth in the Charter, after giving effect to any waivers or modifications of such restrictions by the Board of Directors, and (ii) no Person shall have no any rights under this Agreement that to acquire REIT Shares which would otherwise be prohibited under the Charter, after giving effect to any waivers or modifications of such restrictions by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition Board of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership LimitDirectors. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in the Cash Amount otherwise payable upon such Redemption or the REIT Shares otherwise issuable by the General Special Limited Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If In the General event of a Declination: (1) The Special Limited Partner does not elect shall give notice of such Declination to the Tendering Party on or before the close of business on the Cut-Off Date. The failure of the Special Limited Partner to give notice of such Declination by the close of business on the Cut-Off Date shall be deemed to be an election by the Special Limited Partner to acquire the Tendered Units pursuant to Section 15.1.B hereof:in exchange for REIT Shares. (12) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Special Limited Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Special Limited Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (23) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B hereof or Section 15.1.H hereof, if the General Partner shall not, under any circumstances, elect to acquire any Special Limited Partner’s acquisition of Tendered Units in exchange for the REIT Shares if such acquisition Amount would be prohibited under the Charter, then (i) the Special Limited Partner shall not elect to acquire such Tendered Units, and (ii) the Partnership shall not be obligated to effect a Redemption of such Tendered Units. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by Without the consent of the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership LimitPartner, no Tendering Party may effect a Redemption for less than one two thousand (1,0002,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) holds less than one two thousand (1,0002,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (32) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution payable to Holders of Partnership Common Units, and before the record date established by the General Special Limited Partner for a distribution dividend to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Special Limited Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, then such Tendering Party shall pay to the General Special Limited Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units. (43) The consummation of such Redemption (or an acquisition of Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (54) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until the Specified Redemption Date and until such Partnership Common Tendered Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Special Limited Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. 15.1.B. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Special Limited Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to unless waived by the General Special Limited Partner, the Tendering Party shall submit the following to the General Special Limited Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge such Tendering Party’s knowledge, any Related Party Party, and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor nor, to the best of their knowledge such Tendering Party’s knowledge, any Related Party Party, will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor nor, to the best of its knowledge such Tendering Party’s knowledge, any Related Party Party, has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and and, to the best of its knowledge such Tendering Party’s knowledge, any Related Party Party, remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) 15.1G(1), or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its such Tendering Party’s knowledge, any other Person Related Party, shall own REIT Shares in violation of the Ownership Limit; and. (4) In connection with any Special Redemption, the General Special Limited Partner shall have the right to receive require an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Partnership, the General Partner or the General Special Limited Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party Redemption or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Agreement of Limited Partnership (CyrusOne Inc.)

Redemption Rights of Qualifying Parties. A. (a) After the expiration or earlier termination of any applicable Redemption Hold Lock-Up Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem exchange all or a portion of the Partnership Class A Common Units held by such Tendering Qualifying Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Class A Shares Amount or, at the sole and absolute election of the General Partner, for the Cash Amount payable on the Specified Redemption DateDate (in each case, a “Redemption”), in each case pursuant to, and in accordance with, the Charter and the provisions of this Article XIV. The Notwithstanding the foregoing, the Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the any applicable Redemption Hold Lock-Up Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, provided that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B of this Agreement14.1(e). Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against In the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party event that the General Partner declines elects to acquire some redeem all or all a portion of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) in exchange for the Business Day following the Cut-Off Date. In the event of a Redemptionapplicable Cash Amount, the such applicable Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, by wire transfer of funds on or before the Specified Redemption Date; provided, however, that . (b) If the General Partner may does not elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off DateDate to redeem all of the Tendered Units from the Tendering Party in exchange for the Cash Amount, then the General Partner may, portion of the Tendered Units not being redeemed for the Cash Amount shall be redeemed for the Class A Shares Amount calculated based on the portion of Tendered Units to be acquired in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all exchange for Class A Shares (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued). The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Special Limited Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Class A Shares equal to the product of the Applicable Percentage and the REIT Class A Shares Amount, if applicable, shall be delivered by the General Special Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Class A Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than restrictions provided in the Ownership LimitCharter, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Class A Shares and Rights for all purposes, including, without limitation, including rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Class A Shares issued upon an acquisition of the Tendered Units by the General Partner in connection with a Redemption pursuant to this Section 15.1.B 14.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Special Limited Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1c) The Partnership may elect to raise funds for the payment of the any applicable Cash Amount either (a) solely by requiring that the General Special Limited Partner or its Subsidiaries contribute to the Partnership funds from (i) the proceeds of a registered public offering by the General Special Limited Partner of REIT Class A Shares sufficient to purchase the Tendered Units or (ii) any other sources available to the Special Limited Partner or its Subsidiaries or (b) with the consent of the Tendering Party, from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The To the extent determined by the General Partner shall make a Capital Contribution of any such amounts to Partner, the Partnership for an additional General Partner Interestwill treat such a transaction as a disguised sale under Code section 707(a)(2)(B). Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. (d) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof)contrary, with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.114.1: (1i) All Partnership Common Units acquired by Without the consent of the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership LimitPartner, no Tendering Party may effect a Redemption for less than one thousand [·] (1,000[·]) Partnership Class A Common Units (as adjusted for any unit split, unit distribution, reverse unit split, reclassification or similar event, in each case with such adjustment being determined by the General Partner) or, if such Tendering Party owns holds less than [·] ([·]) Partnership Class A Common Units (as a Limited Partner oradjusted for any unit split, economicallyunit distribution, as an Assignee) less than one thousand (1,000) Partnership Common Unitsreverse unit split, reclassification or similar event, in each case with such adjustment being determined by the General Partner), all of the Partnership Class A Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3ii) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution payable to Holders of Partnership Common Units, and before the record date established by the General Special Limited Partner for a distribution dividend to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Special Limited Partner elects to acquire redeem any of such Tendered Units in exchange for REIT Class A Shares pursuant to Section 15.1.B14.1(b), then such Tendering Party shall pay to the General Special Limited Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units. (4iii) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (5iv) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof10.5) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption DateDate and until such Tendered Units are redeemed. Until a Specified Redemption Date and an acquisition a redemption of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereoffor the Class A Share Amount, the Tendering Party shall have no rights as a stockholder of the General Special Limited Partner with respect to the REIT Class A Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except (v) The General Partner shall establish one or more dates in each fiscal year as otherwise Consented to by a date on which the General Partner, the Tendering Qualifying Party shall submit the following be permitted, subject to the General Partnerexpiration or earlier termination of any applicable Lock-Up Period, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the deliver a Notice of Redemption, (a) disclosing provided that the actual General Partner may postpone any such date one or more times. The General Partner may permit, in writing or orally, one or more Qualifying Parties to submit a Notice of Redemption on such other dates, such permission to be granted, withheld or granted on such terms and constructive ownership, conditions as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit;its sole discretion. (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4e) In connection with any Special Redemption, the General Special Limited Partner shall have the right to receive an opinion of counsel for the Tendering Party reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Partnership, the General Partner or the General Special Limited Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party Redemption or the issuance and sale of REIT Class A Shares to the Tendering Party pursuant to Section 15.1.B 14.1(b) of this Agreement. H. Holders (f) If the General Partner permits a Special Redemption with respect to Partnership Class A Common Units held by Xxxxxxx Xxxxxx or any of LTIP Units shall not his Family Members to be entitled effected prior to the end of the applicable Lock-Up Period, each other Qualifying Party shall have the right to have the same ratable share of its Partnership Class A Common Units redeemed in a Special Redemption provided for in Section 15.1 on the same date and on substantially the same terms as the Special Redemption of this Agreementthe Partnership Class A Common Units held by Xxxxxxx Xxxxxx or his applicable Family Member. (g) Notwithstanding anything herein to the contrary, unless and until such LTIP Units have been converted into any Partner may exchange Partnership Common Units (or any other class or series only to the extent such Partner’s Adjusted Capital Account at the time of the exchange represents at least the same percentage of the aggregate Adjusted Capital Account balances of all partners of the Partnership as the percentage interest represented by such Partnership Common Units entitled to such right be exchanged. For the avoidance of Redemption) in accordance with their termsdoubt, the exchanging Partner may designate the portion of his or her Capital Account attributable to one or more Partnership Common Units being exchanged.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Moelis & Co)

Redemption Rights of Qualifying Parties. A. After the expiration of the applicable Redemption Hold Fourteen-Month Period, a Qualifying Common Party shall have the right (subject to the terms and conditions set forth herein) (the “Common Redemption Right”) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such a Common Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Common Units”) in exchange (a “Common Redemption”) for the Common Unit Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s 's sole and absolute discretion, redeem Tendered Common Units at the request of the Holder thereof Qualifying Common Party prior to the end of the applicable Redemption Hold Fourteen-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Common Redemption shall be exercised pursuant to a Common Unit Notice of Redemption delivered to the General Partner by the Qualifying Common Party when exercising the Redemption right (the “Common Tendering Party”). The Partnership’s 's obligation to effect a Common Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Common Tendering Party that the General Partner it declines to acquire some or all of the Tendered Common Units under Section 15.1.B hereof following receipt of a Common Unit Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Common Redemption, the Common Unit Cash Amount shall be delivered as a certified or bank check payable to the Common Tendering Party or, in the General Partner’s 's sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that tenth (10th) Business Day following the date on which the General Partner may elect to cause receives a Common Unit Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountCommon Tendering Party. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Common Units from the Common Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Common Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Common Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Common Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Common Tendering Party’s 's exercise of its Common Redemption right Right with respect to such Tendered Common Units and (2) such transaction shall be treated, for federal Federal income tax purposes, as a transfer by the Common Tendering Party of such Tendered Common Units to the General Partner in exchange for the Common Unit REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Common Tendering Party shall sell such number of the Tendered Common Units to the General Partner in exchange for a number of REIT Shares equal to the product of the Common Unit REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Common Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, representations and investment letters, legal opinions or other instruments letters as reasonably necessary, in the General Partner’s 's view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Common Units by the General Partner pursuant to this Section 15.1.B, the Common Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Common Units and, upon notice to the Common Tendering Party by the General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the General Partner has elected to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Common Units as to which the General Partner’s 's notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Common Unit REIT Shares Amount and the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and, to the extent applicable, the Securities Act and relevant state securities or “blue sky” laws. Neither any Common Tendering Party whose Tendered Common Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Common Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Common Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Common Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Common Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Common Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Common Unit Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Common Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. Any proceeds from a public offering that are in excess of the Common Unit Cash Amount shall be for the sole benefit of the General Partner. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Common Unit Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Common Unit Cash Amount from the day after the Specified Redemption Date to and including the date on which the Common Unit Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Common Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Common Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Common Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Common Tendering Party owns holds (as a Common Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Common Tendering Party, withoutunless, in each case, the Consent of otherwise agreed to by the General PartnerPartner in its sole and absolute discretion. (3) If (i) a Common Tendering Party surrenders its Tendered Common Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Common Units in exchange for REIT Shares pursuant to Section 15.1.B, such Common Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Common Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Common Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Common Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Common Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof, the Common Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of the Common Redemption rights Right pursuant to this Section 15.1, except as otherwise Consented to agreed by the General Partner, in its sole and absolute discretion, the Common Tendering Party shall submit the following to the General Partner, in addition to the Common Unit Notice of Redemption: (1) A written affidavit, dated the same date as the Common Unit Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Common Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof, neither the Common Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Common Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Common Tendering Party and to the best of its their knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof, neither the Common Tendering Party nor, nor to the best of its knowledge, their knowledge any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and. (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Common Units to the Common Tendering Party or the issuance and sale of REIT Shares to the Common Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Hudson Pacific Properties, Inc.)

Redemption Rights of Qualifying Parties. A. After the expiration of the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) (the “Redemption Right”) to require the Partnership Company to redeem all or a portion of the Partnership Common Units held by such a Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Common Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership Company may, in the General PartnerMIC’s sole and absolute discretion, redeem Tendered Common Units at the request of the Holder thereof Qualifying Party prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth hereinherein (including the expiration of the applicable Specified Redemption Date)) (a “Special Redemption”); provided, however, that the General Partner MIC first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Common Unit Notice of Redemption delivered to the General Partner MIC by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The PartnershipCompany’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership Company until the earlier of (i) the date the General Partner MIC notifies the Tendering Party that the General Partner it declines to acquire some or all of the Tendered Common Units under Section 15.1.B hereof following receipt of a Common Unit Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General PartnerMIC’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner MIC may, in the General Partner’s its sole and absolute discretion but subject to the Ownership LimitLimit (which shall only be applicable so long as MIC qualifies as or intends to qualify as a REIT), elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Common Units from the Tendering Party in exchange for REIT Shares. If the General Partner MIC elects to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the General Partner MIC shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner MIC elects to acquire any of the Tendered Common Units for REIT Shares, the General Partner MIC shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner MIC shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right Right with respect to such Tendered Common Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Common Units to the General Partner MIC in exchange for the REIT Shares Amount. If the General Partner MIC so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Common Units to the General Partner MIC in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner MIC may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or and other instruments as reasonably necessary, in the General PartnerMIC’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Common Units by the General Partner MIC pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership Company to effect a Redemption of such Tendered Common Units and, upon notice to the Tendering Party by the General Partner MIC, given on or before the close of business on the Cut-Off Date Date, that the General Partner MIC has elected to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the obligation of the Partnership Company to effect a Redemption of the Tendered Common Units as to which the General PartnerMIC’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Shares Amount and the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner MIC as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and, to the extent applicable, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Common Units are acquired by the General Partner MIC pursuant to this Section 15.1.B, any PartnerMember, any Assignee nor any other interested Person shall have any right to require or cause the General Partner MIC to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner MIC and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and such Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise all rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Common Units by the General Partner MIC pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner MIC in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereofhereof and so long as MIC qualifies as a REIT, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Common Units by the General Partner MIC pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner MIC under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. . D. If the General Partner MIC does not elect to acquire the Tendered Common Units pursuant to Section 15.1.B hereof: (1) The Partnership Company may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner MIC contribute to the Partnership Company funds from the proceeds of a registered public offering by the General Partner MIC of REIT Shares sufficient to purchase the Tendered Common Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the PartnershipCompany. The General Partner Any proceeds from a public offering that are in excess of the Cash Amount shall be for the sole benefit of MIC. MIC shall make a Capital Contribution of any such amounts to the Partnership Company for an additional General Partner Interest. Any such contribution shall entitle the General Partner MIC to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Mobile Infrastructure Corp)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold PeriodSubject to any Non-Managing Member Ancillary Agreement, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership Company to redeem all or a portion of the Partnership Membership Common Units held by such Tendering Qualifying Party (Partnership Membership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner Managing Member by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The PartnershipCompany’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of Company (i) the date the General Partner notifies the Tendering Party that the General Partner until and unless BrightSpire Capital declines or fails to acquire some or all of the Tendered Units under exercise its purchase rights pursuant to Section 15.1.B hereof following receipt of a Notice of Redemption (a “Declination”) and (ii) unless BrightSpire Capital agrees otherwise, until the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General PartnerManaging Member’s sole and absolute discretion, in immediately available funds, in each case, funds on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner BrightSpire Capital may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, (the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any percentage of the Tendered Units for REIT Sharesso elected to be acquired, the General Partner shall issue and deliver such REIT Shares to “Applicable Percentage”) from the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the product of the REIT Shares AmountAmount and the Applicable Percentage. If the General Partner BrightSpire Capital so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Partner BrightSpire Capital in exchange for a number of Class A REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner BrightSpire Capital may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General PartnerBrightSpire Capital’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner BrightSpire Capital pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership Company to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner BrightSpire Capital, given on or before the close of business on the Cut-Off Date Date, that the General Partner BrightSpire Capital has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership Company to effect a Redemption of the Tendered Units as to which the General PartnerBrightSpire Capital’s notice relates shall not accrue or arise. A number of Class A REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner BrightSpire Capital as duly authorized, validly issued, fully paid and non-assessable Class A REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Securities Act and relevant state securities or “blue sky” laws. If the amount of Class A REIT Shares to be issued in exchange for the Tendered Units is not a whole number of Class A REIT Shares, the Tendering Party shall be paid (i) that number of Class A REIT Shares that equals the nearest whole number less than such amount plus (ii) an amount of cash that BrightSpire Capital determines, in its reasonable discretion, to represent the fair value of the remaining fractional Class A REIT Share that would otherwise be payable to the Tendering Party. Neither any Tendering Party whose Tendered Units are acquired by the General Partner BrightSpire Capital pursuant to this Section 15.1.B, any PartnerMember, any Assignee nor any other interested Person shall have any right to require or cause the General Partner BrightSpire Capital to register, qualify or list any Class A REIT Shares owned or held by such Person, whether or not such Class A REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement (including any Non-Managing Member Ancillary Agreement) between the General Partner BrightSpire Capital and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such Class A REIT Shares and Rights for all purposes, including, without limitation, including rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. Class A REIT Shares issued upon an acquisition of the Tendered Units by the General Partner BrightSpire Capital pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner BrightSpire Capital in good faith determines to be necessary or advisable in order to ensure compliance with such lawslaws and the Charter. C. Notwithstanding the provisions of Section 15.1.A Sections 15.1.A, 15.1.B and 15.1.B 15.1.J hereof, (i) no Person shall be entitled to effect a Redemption for cash or an exchange for Class A REIT Shares to the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by extent the Charter and shall have no rights ownership or right to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner acquire Class A REIT Shares pursuant to Section 15.1.B hereof would such exchange on the Specified Redemption Date could cause any such Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.Bany other Person) to violate the Ownership Limit. To the extent that , after giving effect to any attempted Redemption waivers or acquisition modifications of the Tendered Units such restrictions by the General Partner pursuant to Section 15.1.B hereof would be in violation Board of this Section 15.1.C, it shall be null and void ab initioDirectors, and (ii) no Person shall have any rights under this Agreement to acquire Class A REIT Shares which would otherwise be prohibited under the Charter, after giving effect to any waivers or modifications of such restrictions by the Board of Directors. D. In the event of a Declination: (1) BrightSpire Capital shall give notice of such Declination to the Tendering Party shall not acquire any rights on or economic interests in REIT Shares otherwise issuable before the close of business on the Cut-Off Date. The failure of BrightSpire Capital to give notice of such Declination by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If close of business on the General Partner does not elect Cut-Off Date shall be deemed to be an election by BrightSpire Capital to acquire the Tendered Units pursuant to Section 15.1.B hereof:in exchange for REIT Shares. (12) The Partnership Company may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner BrightSpire Capital contribute to the Partnership Company funds from the proceeds of a registered public offering by the General Partner BrightSpire Capital of Class A REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, including the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustmentCompany. (23) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B hereof or Section 15.1.J hereof, the General Partner shall not, under any circumstances, elect to acquire any if BrightSpire Capital’s acquisition of Tendered Units in exchange for the REIT Shares if such acquisition Amount would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If then (i) a Tendering Party surrenders its BrightSpire Capital shall not elect to acquire such Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distributionUnits, and (ii) the General Partner elects Company shall not be obligated to acquire any effect a Redemption of such Tendered Units. For the avoidance of doubt, unless BrightSpire Capital’s acquisition of Tendered Units in exchange for the REIT Shares pursuant to Section 15.1.BAmount would be prohibited under the Charter, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the if Tendered Units are not exchanged for Class A REIT Shares, insofar as such distribution relates to then the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall Cash Amount will be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their termsthe terms of Section 15.1.

Appears in 1 contract

Samples: Limited Liability Company Agreement (BrightSpire Capital, Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold PeriodSubject to any Non-Managing Member Ancillary Agreement, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership Company to redeem all or a portion of the Partnership Membership Common Units held by such Tendering Qualifying Party (Partnership Membership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner Managing Member by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The PartnershipCompany’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of Company (i) the date the General Partner notifies the Tendering Party that the General Partner until and unless CLNS Credit declines or fails to acquire some or all of the Tendered Units under exercise its purchase rights pursuant to Section 15.1.B hereof following receipt of a Notice of Redemption (a “Declination”) and (ii) unless CLNS Credit agrees otherwise, until the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General PartnerManaging Member’s sole and absolute discretion, in immediately available funds, in each case, funds on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner CLNS Credit may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, (the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any percentage of the Tendered Units for REIT Sharesso elected to be acquired, the General Partner shall issue and deliver such REIT Shares to “Applicable Percentage”) from the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the product of the REIT Shares AmountAmount and the Applicable Percentage. If the General Partner CLNS Credit so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Partner CLNS Credit in exchange for a number of Class A REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner CLNS Credit may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such Table of Contents written representations, investment letters, legal opinions or other instruments necessary, in the General PartnerCLNS Credit’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner CLNS Credit pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership Company to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner CLNS Credit, given on or before the close of business on the Cut-Off Date Date, that the General Partner CLNS Credit has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership Company to effect a Redemption of the Tendered Units as to which the General PartnerCLNS Credit’s notice relates shall not accrue or arise. A number of Class A REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner CLNS Credit as duly authorized, validly issued, fully paid and non-assessable Class A REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Securities Act and relevant state securities or “blue sky” laws. If the amount of Class A REIT Shares to be issued in exchange for the Tendered Units is not a whole number of Class A REIT Shares, the Tendering Party shall be paid (i) that number of Class A REIT Shares that equals the nearest whole number less than such amount plus (ii) an amount of cash that CLNS Credit determines, in its reasonable discretion, to represent the fair value of the remaining fractional Class A REIT Share that would otherwise be payable to the Tendering Party. Neither any Tendering Party whose Tendered Units are acquired by the General Partner CLNS Credit pursuant to this Section 15.1.B, any PartnerMember, any Assignee nor any other interested Person shall have any right to require or cause the General Partner CLNS Credit to register, qualify or list any Class A REIT Shares owned or held by such Person, whether or not such Class A REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement (including any Non-Managing Member Ancillary Agreement) between the General Partner CLNS Credit and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such Class A REIT Shares and Rights for all purposes, including, without limitation, including rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. Class A REIT Shares issued upon an acquisition of the Tendered Units by the General Partner CLNS Credit pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner CLNS Credit in good faith determines to be necessary or advisable in order to ensure compliance with such lawslaws and the Charter. C. Notwithstanding the provisions of Section 15.1.A Sections 15.1.A, 15.1.B and 15.1.B 15.1.J hereof, (i) no Person shall be entitled to effect a Redemption for cash or an exchange for Class A REIT Shares to the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by extent the Charter and shall have no rights ownership or right to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner acquire Class A REIT Shares pursuant to Section 15.1.B hereof would such exchange on the Specified Redemption Date could cause any such Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.Bany other Person) to violate the Ownership Limit. To the extent that , after giving effect to any attempted Redemption waivers or acquisition modifications of the Tendered Units such restrictions by the General Partner pursuant to Section 15.1.B hereof would be in violation Board of this Section 15.1.C, it shall be null and void ab initioDirectors, and (ii) no Person shall have any rights under this Agreement to acquire Class A REIT Shares which would otherwise be prohibited under the Charter, after giving effect to any waivers or modifications of such restrictions by the Board of Directors. D. In the event of a Declination: Table of Contents (1) CLNS Credit shall give notice of such Declination to the Tendering Party shall not acquire any rights on or economic interests in REIT Shares otherwise issuable before the close of business on the Cut-Off Date. The failure of CLNS Credit to give notice of such Declination by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If close of business on the General Partner does not elect Cut-Off Date shall be deemed to be an election by CLNS Credit to acquire the Tendered Units pursuant to Section 15.1.B hereof:in exchange for REIT Shares. (12) The Partnership Company may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner CLNS Credit contribute to the Partnership Company funds from the proceeds of a registered public offering by the General Partner CLNS Credit of Class A REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, including the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustmentCompany. (23) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B hereof or Section 15.1.J hereof, the General Partner shall not, under any circumstances, elect to acquire any if CLNS Credit’s acquisition of Tendered Units in exchange for the REIT Shares if such acquisition Amount would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If then (i) a Tendering Party surrenders its CLNS Credit shall not elect to acquire such Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distributionUnits, and (ii) the General Partner elects Company shall not be obligated to acquire any effect a Redemption of such Tendered Units. For the avoidance of doubt, unless CLNS Credit’s acquisition of Tendered Units in exchange for the REIT Shares pursuant to Section 15.1.BAmount would be prohibited under the Charter, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the if Tendered Units are not exchanged for Class A REIT Shares, insofar as such distribution relates to then the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall Cash Amount will be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their termsthe terms of Section 15.1.A hereof.

Appears in 1 contract

Samples: Master Combination Agreement (NorthStar Real Estate Income II, Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold first Twelve-Month Period, a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Redeemable Units held by such Tendering Party (Partnership Common such Redeemable Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for REIT shares issuable on, or the Cash Amount payable on on, the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause as determined by the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreementin its sole discretion. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation A Tendering Party shall have no right to effect a receive distributions with respect to any Tendered Units (other than the Cash Amount) paid after delivery of the Notice of Redemption, however, shall whether or not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some Record Date for such distribution precedes or all coincides with such delivery of the Notice of Redemption. If the Partnership elects to redeem Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemptionfor cash, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner Partnership elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the redeem Tendered Units for REIT SharesShares rather than cash, then the Partnership shall direct the Previous General Partner shall to issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of set forth in this Section 15.1.B8.6.B, in which case case, (1i) the Previous General Partner Partner, acting as a distinct legal entity, shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units right, and (2ii) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the Previous General Partner in exchange for REIT shares. The percentage of the Tendered Units tendered for Redemption by the Tendering Party for which the Partnership elects to cause the Previous General Partner to issue REIT Shares Amount(rather than cash) is referred to as the “Applicable Percentage.” In making such election to cause the Previous General Partner to acquire Tendered Units, the Partnership shall act in a fair, equitable and reasonable manner that neither prefers one group or class of Qualifying Parties over another nor discriminates against a group or class of Qualifying Parties. If the General Partner so electsPartnership elects to redeem any number of Tendered Units for REIT Shares, rather than cash, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the Previous General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the Previous General Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the Previous General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the The product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the Previous General Partner as duly authorized, validly issued, fully paid and non-assessable accessible REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Bylaws of the Previous General Partner, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the Previous General Partner pursuant to this Section 15.1.B8.6.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the Previous General Partner or the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B8.6.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the Previous General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the Previous General Partner pursuant to this Section 15.1.B 8.6.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the Previous General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A 8.6.A and 15.1.B 8.6.B hereof, the Tendering Parties (i) where the Redemption would consist of less than all the Partnership Common Units held by Partners other than the General Partner and the Special Limited Partner, shall not be entitled to elect or effect a Redemption to the extent that the aggregate Percentage Interests of the Limited Partners (other than the Special Limited Partner) would be reduced, as a result of the Redemption, to less than one percent (1%) and (ii) shall have no rights under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership LimitCharter. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C8.6.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the Previous General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A 8.6.B hereof. D. If In the event that the Partnership declines to cause the Previous General Partner to acquire all of the Tendered Units from the Tendering Party in exchange for REIT Shares pursuant to Section 8.6.B hereof following receipt of a Notice of Redemption (a “Declination”): (1) The Previous General Partner or the General Partner does not elect shall give notice of such Declination to acquire the Tendered Units pursuant to Section 15.1.B hereof:Tendering Party on or before the close of business on the Cut-Off Date. (12) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership such funds from the proceeds of a registered public offering (a “Public Offering Funding”) by the Previous General Partner of a number of REIT Shares sufficient (“Registrable Shares”) equal to purchase the REIT Shares Amount with respect to the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. (3) Promptly upon the General Partner’s receipt of the Notice of Redemption and the Previous General Partner or the General Partner giving notice of the Partnership’s Declination, the General Partner shall give notice (a “Single Funding Notice”) to all Qualifying Parties then holding a Partnership Interest (or an interest therein) and having Redemption rights pursuant to this Section 8.6 and require that all such Qualifying Parties elect whether or not to effect a Redemption of their Partnership Common Units to be funded through such Public Offering Funding. In the event that any such Qualifying Party elects to effect such a Redemption, it shall give notice thereof and of the number of Partnership Common Units to be made subject thereon in writing to the General Partner within ten (10) Business Days after receipt of the Single Funding Notice, and such Qualifying Party shall be treated as a Tendering Party for all purposes of this Section 8.6. In the event that a Qualifying Party does not so elect, it shall be deemed to have waived its right to effect a Redemption for the current Twelve-Month Period; provided, however, that the Previous General Partner shall not be required to acquire Partnership Common Units pursuant to this Section 8.6.D more than twice within a Twelve-Month Period. Any proceeds from a Public Offering Funding that are in excess of the Cash Amount shall be for the sole benefit of the Previous General Partner and/or the General Partner. The General Partner and/or the Special Limited Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest and/or Limited Partner Interest. Any such contribution shall entitle the General Partner and the Special Limited Partner, as the case may be, to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B 8.6.B hereof, the Previous General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for the REIT Shares Amount if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 8.6.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.18.6: (1) All Partnership Common Units acquired by the Previous General Partner pursuant to Section 15.1.B 8.6.B hereof shall be contributed by the Previous General Partner to either or both of the General Partner and the Special Limited Partner in such proportions as the Previous General Partner, the General Partner and the Special Limited Partner shall determine. Any Partnership Common Units so contributed to the General Partner shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. Any Partnership Common Units so contributed to the Special Limited Partner shall remain outstanding. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand five hundred (1,000500) Partnership Common Redeemable Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand five hundred (1,000500) Partnership Common Redeemable Units, all of the Partnership Common Redeemable Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Each Tendering Party surrenders its Tendered Units (a) may effect a Redemption only once in each fiscal quarter of a Twelve-Month Period and (b) may not effect a Redemption during the period after the Partnership Record Date with respect to a distribution and before the record date established by the Previous General Partner for a distribution to its stockholders shareholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) Notwithstanding anything herein to the contrary, with respect to any Redemption or acquisition of Tendered Units by the Previous General Partner pursuant to Section 8.6.B hereof, in the event that the Previous General Partner or the General Partner gives notice to all Limited Partners (but excluding any Assignees) then owning Partnership Interests (a “Primary Offering Notice”) that the Previous General Partner desires to effect a primary offering of its equity securities then, unless the Previous General Partner and the General Partner otherwise consent, commencement of the actions denoted in Section 8.6.E hereof as to a Public Offering Funding with respect to any Notice of Redemption thereafter received, whether or not the Tendering Party is a Limited Partner, may be delayed until the earlier of (a) the completion of the primary offering or (b) ninety (90) days following the giving of the Primary Offering Notice. (5) Without the Consent of the Previous General Partner, no Tendering Party may effect a Redemption within ninety (90) days following the closing of any prior Public Offering Funding. (6) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the XxxxHxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (57) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions provision of Section 11.5 hereof) all Partnership Common Redeemable Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Redeemable Units for all purposes of this Agreement, until such Partnership Common Redeemable Units are either paid for by the Partnership pursuant to Section 15.1.A 8.6.A hereof or transferred to the Previous General Partner (or directly to the General Partner or Special Limited Partner) and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the Previous General Partner pursuant to Section 15.1.B 8.6.B hereof, the Tendering Party shall have no rights as a stockholder shareholder of the Previous General Partner with respect to the REIT Shares issuable in connection with such acquisition. For purposes of determining compliance with the restrictions set forth in this Section 8.6.F, all Partnership Common Units beneficially owned by a Related Party of a Tendering Party shall be considered to be owned or held by such Tendering Party. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner8.6, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereofRedemption, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(18.6.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereofRedemption, neither the Tendering Party nor, to the best of its knowledge, nor any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Apartment Investment & Management Co)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Fourteen-Month Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Fourteen-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that tenth (10th) Business Day following the date on which the General Partner may elect to cause receives a Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountTendering Party. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion H. LTIP Unit Exception and Redemption of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale Common Units Issued Upon Conversion of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. LTIP Units. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Younan Properties Inc)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Period, a (a) A Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem exchange all or a portion of the Partnership Company Class A Common Units held by such Tendering Qualifying Party (Partnership Company Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Class A Shares Amount or, at the sole and absolute election of the Managing Member, for the Cash Amount payable on the Specified Redemption Date. The Partnership mayDate (in each case, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, howeverin each case pursuant to, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemptionand in accordance with, the issuance Charter and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B provisions of this AgreementArticle XIV. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner Managing Member by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against In the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party event that the General Partner declines Managing Member elects to acquire some redeem all or all a portion of the Tendered Units under Section 15.1.B hereof in exchange for the applicable Cash Amount, then the Tendering Party shall have the right, at any time during the five (5) Business Days following receipt of a such election by the Managing Member, to rescind the Notice of Redemption pursuant to a written notice (the “Rescission Notice”) and (ii) retain its Company Class A Common Units or Company Class B Common Units, as applicable. If the Business Day following the Cut-Off Date. In the event of Tendering Party does not provide a RedemptionRescission Notice, the applicable Cash Amount shall be delivered by the Managing Member as a certified or bank check payable to the Tendering Party or, in the General PartnerManaging Member’s sole and absolute discretion, in immediately available funds, in each case, by wire transfer of funds on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding (b) If the provisions of Section 15.1.A hereof, Managing Member does not elect on or before the close of business on the Cut-Off DateDate to redeem all of the Tendered Units from the Tendering Party in exchange for the Cash Amount, then the General Partner may, portion of the Tendered Units not being redeemed for the Cash Amount shall be redeemed for the Class A Shares Amount calculated based on the portion of Tendered Units to be acquired in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all exchange for Class A Shares (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued). The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General PartnerManaging Member’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Class A Shares equal to the product of the Applicable Percentage and the REIT Class A Shares Amount, if applicable, shall be delivered by the General Partner Managing Member as duly authorized, validly issued, fully paid and non-assessable REIT Class A Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than restrictions provided in the Ownership LimitCharter, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Class A Shares and Rights for all purposes, including, without limitation, including rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Class A Shares issued upon an acquisition of the Tendered Units by the General Partner in connection with a Redemption pursuant to this Section 15.1.B 14.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner Managing Member in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1c) The Partnership Company may elect to raise funds for the payment of the any applicable Cash Amount either (ai) solely by requiring that the General Partner Managing Member or its Subsidiaries contribute to the Partnership Company funds from (A) the proceeds of a registered public offering by the General Partner Managing Member of REIT Class A Shares sufficient to purchase the Tendered Units or (bB) any other sources available to the Managing Member or its Subsidiaries or (ii) with the consent of the Tendering Party, from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the PartnershipCompany. The General Partner shall make To the extent determined by the Managing Member, the Company will treat such a Capital Contribution transaction as a disguised sale of any such amounts to the Partnership for an additional General Partner Interestpartnership interests under Code Section 707(a)(2)(B). Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. (d) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof)contrary, with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.114.1: (1i) All Partnership Common Units acquired by Without the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised consent of the same number of Partnership Common Units. (2) Subject to the Ownership LimitManaging Member, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Company Class A Common Units having a Value of at least $5,000,000 (as adjusted for any unit split, unit distribution, reverse unit split, reclassification or similar event, in each case with such adjustment being determined by the Managing Member) or, if such Tendering Party owns holds less than Company Class A Common Units having a Value of at least $5,000,000 (as a Limited Partner oradjusted for any unit split, economicallyunit distribution, as an Assignee) less than one thousand (1,000) Partnership Common Unitsreverse unit split, reclassification or similar event, in each case with such adjustment being determined by the Managing Member), all of the Partnership Company Class A Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3ii) If (iA) a Tendering Party surrenders its Tendered Units during the period after the Partnership Company Record Date with respect to a distribution payable to Holders of Company Common Units, and before the record date established by the General Partner Managing Member for a distribution dividend to its stockholders of some or all of its portion of such Partnership Company distribution, and (iiB) the General Partner Managing Member elects to acquire redeem any of such Tendered Units in exchange for REIT Class A Shares pursuant to Section 15.1.B14.1(b), then such Tendering Party shall pay to the General Partner Managing Member on the Specified Redemption Date an amount in cash equal to the portion of the Partnership Company distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units. (4iii) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (5iv) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof10.5) all Partnership Company Common Units subject to any Redemption, and be treated as a Limited Partner Non-Managing Member or an Assignee, as applicable, with respect to such Partnership Company Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption DateDate and until such Tendered Units are redeemed. Until a Specified Redemption Date and an acquisition a redemption of the Tendered Units by the General Partner pursuant to Section 15.1.B hereofManaging Member for the Class A Share Amount, the Tendering Party shall have no rights as a stockholder of the General Partner Managing Member with respect to the REIT Class A Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except (v) The Managing Member shall establish one or more dates in each Fiscal Year as otherwise Consented to by a date on which the General Partner, the Tendering Qualifying Party shall submit the following be permitted to the General Partner, in addition to the deliver a Notice of Redemption:. The Managing Member may permit, in writing or orally, one or more Qualifying Parties to submit a Notice of Redemption on such other dates, such permission to be granted, withheld or granted on such terms and conditions as determined by the Managing Member in its sole discretion. (1e) A written affidavitNotwithstanding anything herein to the contrary, dated with respect to any Profits Interest Units, any Member may exchange such Profits Interest Units only to the extent such Member’s Adjusted Capital Account attributable to such Profits Interest Units at the time of the exchange represents the same date percentage of the aggregate Adjusted Capital Account balances of all Members of the Company as the Notice of Redemption, (apercentage interest represented by such Profits Interest Units to be exchanged. The determination in this Section 14.1(e) disclosing the actual and constructive ownership, shall be calculated as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) if each Excluded Asset had been contributed to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner Company pursuant to Section 15.1.B hereof3.9. For the avoidance of doubt, neither the Tendering Party nor exchanging Member may designate the portion of his or her Capital Account attributable to one or more Company Units being exchanged. (f) Upon redemption of any Class A Common Unit, the Company shall convert a number of Class C Common Units held by the Managing Member equal to the best number of their knowledge any Related Party will own REIT Class C Shares that were converted in violation connection with such Class A Common Unit redemption and issue to the Managing Member a number of Class A Units equal to the number of whole Class A Shares issued upon such conversion and pay to the Managing Member an amount in cash equal to the cash paid to holders of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best Class C Shares converted in lieu of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreementfractional shares. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Purchase and Contribution Agreement (Skilled Healthcare Group, Inc.)

Redemption Rights of Qualifying Parties. A. (a) After the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) (the “Redemption Right”) to require the Partnership to redeem all or a portion of the Partnership Common applicable OP Units held by such Tendering Party (Partnership Common OP Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder holder thereof prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right Right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to require the Initial Limited Partner to acquire some or all of the Tendered Units under Section 15.1.B 15.1(b) hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. (b) Notwithstanding the provisions of Section 15.1.A 15.1(a) hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to require the Initial Limited Partner to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Sharesshares of Common Stock or the Cash Amount payable on the Specified Redemption Date. If the General Partner elects to require the Initial Limited Partner to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to require the Initial Limited Partner to acquire any of the Tendered Units for REIT Sharesshares of Common Stock, the General Initial Limited Partner shall issue and deliver such REIT Shares Common Stock to the Tendering Party pursuant to the terms of this Section 15.1.B15.1(b), in which case (1) the General Initial Limited Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right Right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Initial Limited Partner in exchange for the REIT Shares Common Stock Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Initial Limited Partner in exchange for a number of REIT Shares shares of Common Stock equal to the product of the REIT Shares Common Stock Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Initial Limited Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Initial Limited Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Initial Limited Partner pursuant to this Section 15.1.B15.1(b), the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to require the Initial Limited Partner to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares shares of Common Stock equal to the product of the Applicable Percentage and the REIT Shares Common Stock Amount, if applicable, shall be delivered by the General Initial Limited Partner as duly authorized, validly issued, fully paid and non-non- assessable REIT Shares shares of Common Stock and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Initial Limited Partner pursuant to this Section 15.1.B15.1(b), any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Initial Limited Partner to register, qualify or list any REIT Shares Common Stock owned or held by such Person, whether or not such REIT Shares shares of Common Stock are issued pursuant to this Section 15.1.B15.1(b), with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Initial Limited Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner Shares of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares Common Stock issued upon an acquisition of the Tendered Units by the General Initial Limited Partner pursuant to this Section 15.1.B 15.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. (c) Notwithstanding the provisions of Section 15.1.A 15.1(a) and 15.1.B 15.1(b) hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter Articles of Incorporation and shall have no rights to require the Partnership to redeem Common OP Units if the acquisition of such Common OP Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof would be in violation of this Section 15.1.C15.1(c), it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares the shares of Common Stock otherwise issuable by the General Initial Limited Partner under Section 15.1.B 15.1(b) hereof or cash otherwise payable under Section 15.1.A 15.1(a) hereof. D. (d) If the General Partner does not elect to require the Initial Limited Partner to acquire the Tendered Units pursuant to Section 15.1.B 15.1(b) hereof: (1i) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Initial Limited Partner contribute to the Partnership funds from the proceeds of a registered public offering Offering by the General Initial Limited Partner of REIT Shares shares of Common Stock sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Initial Limited Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner InterestPartnership Interest consistent with the provisions of Article 4. Any such contribution shall entitle the General Initial Limited Partner to an equitable Percentage Interest adjustment. (2ii) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Periodfirst Twelve-Month Period (or such shorter or longer period as may be provided in a particular Partner Schedule), a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (such Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as called “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of until and unless there has been a Notice of Redemption Declination and (ii) before the first Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A 8.6.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership LimitLimit and the transfer restrictions and other limitations of the Charter, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B8.6.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B8.6.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the The product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable nonassessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Bylaws of the General Partner, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B8.6.B, any other Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B8.6.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B 8.6.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A Sections 8.6.A and 15.1.B 8.6.B hereof, no Tendering Party (i) where the Tendering Parties Redemption would consist of less than all the Partnership Units held by Partners other than the General Partner, shall be entitled to elect or effect a Redemption to the extent that the aggregate Partnership Units of the Limited Partners would be reduced, as a result of the Redemption (or the acquisition of the Tendered Units by the General Partner pursuant to Section 8.6.B hereof), to less than one percent (1%) of all Partnership Units outstanding immediately prior to delivery of the Notice of Redemption and (ii) shall have no any rights under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership LimitCharter. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof would be in violation of this Section 15.1.C8.6.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A 8.6.B hereof. D. If In the event that the General Partner does not elect declines or fails to acquire the Tendered Units exercise its purchase rights pursuant to Section 15.1.B hereof:8.6.B hereof following receipt of a Notice of Redemption (a “Declination”): (1) The General Partner shall give notice of such Declination to the Tendering Party on or before the close of business on the Cut-Off Date. The failure of the General Partner to give notice of such Declination by the close of business on the Cut-Off Date shall itself constitute a Declination. (2) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B 8.6.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for the REIT Shares Amount if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 8.6.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B 8.6.B hereof) pursuant to this Section 15.18.6: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B 8.6.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest Interests comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand five hundred (1,000500) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand five hundred (1,000500) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Each Tendering Party surrenders (a) may effect a Redemption only once in each Twelve-Month Period (unless the restriction contained in this Section 8.6.F(3)(a) is waived by the General Partner in its Tendered Units sole and absolute discretion) and (b) may not effect a Redemption during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders shareholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) Without the Consent of the General Partner (which may be given or withheld in its sole and absolute discretion), no Tendering Party may effect a Redemption within ninety (90) days following the closing of any prior registered public offering of REIT Shares by the General Partner. (5) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (56) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A 8.6.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, the Tendering Party shall have no rights as a stockholder shareholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. For purposes of determining compliance with the restrictions set forth in this Section 8.6.F, all Partnership Units beneficially owned by a Related Party of a Tendering Party shall be considered to be owned or held by such Tendering Party. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner8.6, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as as, and accompanying, the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6), 856(h), 856(d)(2)(B) and 856(h856(d)(5), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(18.6.G(l) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, neither the Tendering Party nor, to the best of its knowledge, nor any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Agreement of Limited Partnership (New Plan Excel Realty Trust Inc)

Redemption Rights of Qualifying Parties. A. (a) After the expiration or earlier termination of any applicable Redemption Hold Lock-Up Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Qualifying Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption DateDate (in each case, a “Redemption”). The Partnership Notwithstanding the foregoing, the Company may, in the General PartnerManager’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof Tendering Party prior to the end of the any applicable Redemption Hold Lock-Up Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner Manager first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B of this Agreement11.1(e). Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner Manager by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). To be effective, such Notice of Redemption must be received by the Company not less than three (3) and not more than ten (10) Business Days prior to the Specified Redemption Date. The PartnershipCompany’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of Company (i) the date the General Partner notifies the Tendering Party that the General Partner unless and until SDC Inc. declines to acquire some or all of the Tendered Units under exercise its purchase rights pursuant to Section 15.1.B 11.1(b) hereof following receipt of a Notice of Redemption (a “Declination”) and (ii) until the Business Day following the Cut-Off Date. In the event of a Redemption, the applicable Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General PartnerManager’s sole and absolute discretion, in immediately available funds, in each case, by wire transfer of funds on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. (b) Notwithstanding the provisions of Section 15.1.A 11.1(a) hereof, on or before the close of business on the Cut-Off Date, the General Partner SDC Inc. may, in the General Partner’s sole and absolute discretion but subject to of the Ownership LimitBoard of Directors, elect to acquire some or all (such percentage being referred to as the “Applicable Acquired Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Sharesthe Class A Shares Amount or the Cash Amount (as determined by SDC Inc. in its sole discretion), calculated based on the portion of Tendered Units it elects to acquire. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner SDC Inc. so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner SDC Inc. in exchange for (i) a number of REIT Class A Shares equal to the product of the REIT Class A Shares Amount and the Applicable Acquired Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to (ii) cash in an additional 60 Business Days amount equal to the extent required for product of the General Partner to cause additional REIT Shares to be issuedCash Amount and the Acquired Percentage, or (iii) a combination of (i) and (ii), with the form and allocation of consideration determined by SDC Inc. in its sole discretion. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s viewview of SDC Inc., to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner SDC Inc. pursuant to this Section 15.1.B11.1(b), the Tendering Party shall no longer have the right to cause the Partnership Company to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner SDC Inc., given on or before the close of business on the Cut-Off Date Date, that the General Partner SDC Inc. has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B11.1(b), the obligation of the Partnership Company to effect a Redemption of the Tendered Units as to which the General PartnerSDC Inc.’s notice relates shall not accrue or arise. If SDC Inc. elects to acquire Tendered Units for Class A Shares, then a number of REIT Class A Shares equal to the product of the Applicable Percentage and the REIT Class A Shares Amount, if applicable, shall be delivered by the General Partner SDC Inc. as duly authorized, validly issued, fully paid and non-assessable REIT Class A Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than restrictions provided in the Ownership Limitcertificate of incorporation of SDC Inc., the Securities Act and relevant state securities or “blue sky” lawsLaws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner SDC Inc. pursuant to this Section 15.1.B11.1(b), any PartnerMember, any Assignee nor any other interested Person shall have any right to require or cause the General Partner SDC Inc. to register, qualify or list any REIT Class A Shares owned or held by such Person, whether or not such REIT Class A Shares are issued pursuant to this Section 15.1.B11.1(b), with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner SDC Inc. and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Class A Shares and Rights for all purposes, including, without limitation, including rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Class A Shares issued upon an acquisition of the Tendered Units by the General Partner SDC Inc. pursuant to this Section 15.1.B 11.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws Laws as the General Partner SDC Inc. in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding Laws. If SDC Inc. elects to acquire Tendered Units for cash, then cash equal to the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition product of the Tendered Units by Acquired Percentage and the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it Cash Amount shall be null and void ab initio, and delivered as a certified or bank check payable to the Tendering Party or, in SDC Inc.’s sole and absolute discretion, by wire transfer of funds on or before the Specified Redemption Date. (c) In the event of a Declination, SDC Inc. shall not acquire any rights give notice of such Declination to the Tendering Party on or economic interests in REIT Shares otherwise issuable before the close of business on the Cut-Off Date. The failure of SDC Inc. to give notice of such Declination by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If close of business on the General Partner does not elect Cut-Off Date shall be deemed to be an election by SDC Inc. to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership in exchange for Class A Shares or cash. In the event of a Declination, the Company may elect to raise funds for the payment of the any applicable Cash Amount either (a) solely by requiring that the General Partner SDC Inc. or its Subsidiaries contribute to the Partnership Company funds from (i) the proceeds of a registered public offering by the General Partner SDC Inc. of REIT Class A Shares sufficient to purchase the Tendered Units or (ii) any other sources available to SDC Inc. or its Subsidiaries or (b) with the consent of the Tendering Party, from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the PartnershipCompany. The General Partner shall make To the extent determined by the Manager, the Company will treat such a Capital Contribution transaction as a disguised sale under Section 707(a)(2)(B) of any such amounts to the Partnership for an additional General Partner InterestCode. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)Internal Revenue Service. E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. (d) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof)contrary, with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner SDC Inc. pursuant to Section 15.1.B 11.1(b) hereof) pursuant to this Section 15.111.1: (1i) All Partnership Common Units acquired by Without the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised consent of the same number of Partnership Common Units. (2) Subject to the Ownership LimitManager, no Tendering Party may effect a Redemption for less than one [ten thousand (1,000) Partnership 10,000)] Common Units (as adjusted for any unit split, unit distribution, reverse unit split, reclassification or similar event, in each case with such adjustment being determined by the Manager.) or, if such Tendering Party owns holds less than [ten thousand (10,000)] Common Units (as a Limited Partner oradjusted for any unit split, economicallyunit distribution, as an Assignee) less than one thousand (1,000) Partnership Common Unitsreverse unit split, reclassification or similar event, in each case with such adjustment being determined by the Manager), all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3ii) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Company Record Date with respect to a distribution payable to Holders of Common Units, and before the record date established by the General Partner SDC Inc. for a distribution dividend to its stockholders of some or all of its portion of such Partnership Company distribution, and (ii) the General Partner SDC Inc. elects to acquire any of such Tendered Units in exchange for REIT Class A Shares pursuant to Section 15.1.B11.1(b), then such Tendering Party shall pay to the General Partner SDC Inc. on the Specified Redemption Date an amount in cash equal to the portion of the Partnership Company distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units. (4iii) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner SDC Inc. pursuant to Section 15.1.B 11.1(b) hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (5iv) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof10.5) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner Member or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until the Specified Redemption Date and until such Partnership Common Tendered Units are either paid for by the Partnership Company pursuant to Section 15.1.A 11.1(a) hereof or transferred to the General Partner SDC Inc. and paid for, for by the issuance of the REIT Shares, Class A Shares or payment of cash pursuant to Section 15.1.B hereof on the Specified Redemption Date11.1(b). Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner SDC Inc. for Class A Shares pursuant to Section 15.1.B 11.1(b) hereof, the Tendering Party shall have no rights as a stockholder of the General Partner SDC Inc. with respect to the REIT Class A Shares issuable in connection with such acquisition. G. In connection with an exercise (v) The Manager shall establish a Specified Redemption Date in each quarter of each Fiscal Year, subject to the expiration or earlier termination of any applicable Lock-Up Period, provided, that the Manager may postpone any such date one or more times. The Manager shall provide notice to the Members of each Specified Redemption rights pursuant Date at least forty-five (45) days prior to this Section 15.1such date. The Manager may, except in its sole discretion, establish additional Specified Redemption Dates on such terms and conditions as otherwise Consented to determined by the General PartnerManager in its sole discretion, if it determines that doing so would not create a material risk that the Tendering Party shall submit Company would become a “publicly traded partnership,” as such term is defined in Sections 469(k)(2) or 7704(b) of the following to the General Partner, in addition to the Notice of Redemption:Code. (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4e) In connection with any Special Redemption, the General Partner SDC Inc. shall have the right to receive an opinion of counsel for the Tendering Party reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Company or the General Partner SDC Inc. to violate any federal or state securities laws Laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party Redemption or the issuance and sale of REIT Class A Shares to the Tendering Party pursuant to Section 15.1.B 11.1(b) of this Agreement. H. Holders of LTIP Units shall not be entitled (f) Notwithstanding anything herein to the right of Redemption provided for in Section 15.1 of this Agreementcontrary, unless and until such LTIP Units have been converted into Partnership any Member may exchange Common Units (or any other class or series only to the extent such Member’s Adjusted Capital Account Balance at the time of Partnership the exchange represents at least the same percentage of the aggregate Adjusted Capital Account Balances of all partners of the Company as the percentage interest represented by such Common Units entitled to such right be exchanged. For the avoidance of Redemption) in accordance with their termsdoubt, the exchanging Member may designate the portion of his or her Capital Account attributable to one or more Common Units being exchanged.

Appears in 1 contract

Samples: Limited Liability Company Agreement (SmileDirectClub, Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold PeriodSubject to any Non-Managing Member Ancillary Agreement, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership Company to redeem all or a portion of the Partnership Membership Common Units held by such Tendering Qualifying Party (Partnership Membership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner Managing Member by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The PartnershipCompany’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of Company (i) the date the General Partner notifies the Tendering Party that the General Partner until and unless CLNY declines or fails to acquire some or all of the Tendered Units under exercise its purchase rights pursuant to Section 15.1.B hereof following receipt of a Notice of Redemption (a “Declination”) and (ii) unless CLNY agrees otherwise, until the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General PartnerManaging Member’s sole and absolute discretion, in immediately available funds, in each case, funds on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner CLNY may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, (the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any percentage of the Tendered Units for REIT Sharesso elected to be acquired, the General Partner shall issue and deliver such REIT Shares to “Applicable Percentage”) from the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the product of the REIT Shares AmountAmount and the Applicable Percentage. If the General Partner CLNY so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Partner CLNY in exchange for a number of Class A REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner CLNY may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General PartnerCLNY’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner CLNY pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership Company to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner CLNY, given on or before the close of business on the Cut-Off Date Date, that the General Partner CLNY has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership Company to effect a Redemption of the Tendered Units as to which the General PartnerCLNY’s notice relates shall not accrue or arise. A number of Class A REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner CLNY as duly authorized, validly issued, fully paid and non-assessable Class A REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Securities Act and relevant state securities or “blue sky” laws. If the amount of Class A REIT Shares to be issued in exchange for the Tendered Units is not a whole number of Class A REIT Shares, the Tendering Party shall be paid (i) that number of Class A REIT Shares that equals the nearest whole number less than such amount plus (ii) an amount of cash that CLNY determines, in its reasonable discretion, to represent the fair value of the remaining fractional Class A REIT Share that would otherwise be payable to the Tendering Party. Neither any Tendering Party whose Tendered Units are acquired by the General Partner CLNY pursuant to this Section 15.1.B, any PartnerMember, any Assignee nor any other interested Person shall have any right to require or cause the General Partner CLNY to register, qualify or list any Class A REIT Shares owned or held by such Person, whether or not such Class A REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement (including any Non-Managing Member Ancillary Agreement) between the General Partner CLNY and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such Class A REIT Shares and Rights for all purposes, including, without limitation, including rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. Class A REIT Shares issued upon an acquisition of the Tendered Units by the General Partner CLNY pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner CLNY in good faith determines to be necessary or advisable in order to ensure compliance with such lawslaws and CLNY’s charter. C. Notwithstanding the provisions of Section 15.1.A Sections 15.1.A, 15.1.B and 15.1.B 15.1.I hereof, (i) no Person shall be entitled to effect a Redemption for cash or an exchange for Class A REIT Shares to the Tendering Parties extent the ownership or right to acquire Class A REIT Shares pursuant to such exchange on the Specified Redemption Date could cause such Person (or any other Person) to violate the restrictions on ownership and transfer of Class A REIT Shares set forth in the Charter, after giving effect to any waivers or modifications of such restrictions by the Board of Directors, and (ii) no Person shall have no any rights under this Agreement that to acquire Class A REIT Shares which would otherwise be prohibited under the Charter, after giving effect to any waivers or modifications of such restrictions by the Charter and Board of Directors. D. In the event of a Declination: (1) CLNY shall have no rights to require the Partnership to redeem Common Units if the acquisition give notice of such Common Units by the General Partner pursuant Declination to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights on or economic interests in REIT Shares otherwise issuable before the close of business on the Cut-Off Date. The failure of CLNY to give notice of such Declination by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If close of business on the General Partner does not elect Cut-Off Date shall be deemed to be an election by CLNY to acquire the Tendered Units pursuant to Section 15.1.B hereof:in exchange for REIT Shares. (12) The Partnership Company may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner CLNY contribute to the Partnership Company funds from the proceeds of a registered public offering by the General Partner CLNY of Class A REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, including the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustmentCompany. (23) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B 15.1B hereof or Section 15.1I hereof, the General Partner shall not, under any circumstances, elect to acquire any if CLNY’s acquisition of Tendered Units in exchange for the REIT Shares if such acquisition Amount would be prohibited under the Charter, then (i) CLNY shall not elect to acquire such Tendered Units, and (ii) the Company shall not be obligated to effect a Redemption of such Tendered Units. For the avoidance of doubt, unless CLNY’s acquisition of Tendered Units in exchange for the REIT Shares Amount would be prohibited under the Charter, if Tendered Units are not exchanged for Class A REIT Shares, then the Cash Amount will be paid to the Tendering Party in accordance with the terms of Section 15.1.A hereof. F. Each Non-Managing Member covenants and agrees that all Membership Common Units delivered for redemption shall be delivered to the Company or CLNY, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither CLNY nor the Company shall be under any obligation to acquire Membership Common Units which are or may be subject to any liens. Each Non-Managing Member further agrees that, if any stamp, recording, documentary or similar tax is payable with respect to the Membership Common Units as a result of the transfer thereof to the Company or the CLNY, such Tendering Party shall assume and pay such tax. G. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Membership Common Units for Redemption if the Tendered Units are acquired by the General Partner CLNY pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by Without the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised consent of the same number of Partnership Common Units. (2) Subject to the Ownership LimitManaging Member, no Tendering Party may effect a Redemption for less than one thousand sixty-five (1,0001,065) Partnership Membership Common Units or for any number of Membership Common Units that is not a multiple of seventy-one (71) or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) holds less than one thousand sixty-five (1,0001,065) Partnership Membership Common Units, all of the Partnership Membership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (32) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Company Record Date with respect to a distribution payable to Holders of Membership Common Units, and before the record date established by the General Partner CLNY for a distribution dividend to its stockholders of some or all of its portion of such Partnership Company distribution, and (ii) the General Partner CLNY elects to acquire any of such Tendered Units in exchange for Class A REIT Shares pursuant to Section 15.1.B, then such Tendering Party shall pay to the General Partner CLNY on the Specified Redemption Date an amount in cash equal to the portion of the Partnership Company distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units. (43) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner CLNY pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (54) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Membership Common Units subject to any Redemption, and be treated as a Limited Partner Member or an Assignee, as applicable, with respect to such Partnership Membership Common Units for all purposes of this Agreement, until the Specified Redemption Date and until such Partnership Common Tendered Units are either paid for by the Partnership Company pursuant to Section 15.1.A hereof or transferred to the General Partner CLNY and paid for, by the issuance of the Class A REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. 15.1.B. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner CLNY pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner CLNY with respect to the REIT Shares issuable in connection with such acquisition. G. H. In connection with an the exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to unless waived by the General PartnerCLNY, the Tendering Party shall submit the following to the General PartnerCLNY, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual Beneficial and constructive ownershipConstructive ownership (as defined in CLNY’s charter), as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge such Tendering Party’s knowledge, any Related Party Party, and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner CLNY pursuant to Section 15.1.B 15.1B hereof, neither the Tendering Party nor nor, to the best of their knowledge such Tendering Party’s knowledge, any Related Party Party, will Beneficially or Constructively own (as defined in CLNY’s charter) REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor nor, to the best of its knowledge such Tendering Party’s knowledge, any Related Party Party, has any intention to acquire Beneficial or Constructive ownership (as defined in CLNY’s charter) of any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Partner CLNY pursuant to Section 15.1.B 15.1B hereof on the Specified Redemption Date, that either (a) the actual Beneficial and constructive Constructive ownership (as defined in CLNY’s charter) of REIT Shares by the Tendering Party and and, to the best of its knowledge such Tendering Party’s knowledge, any Related Party Party, remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) 15.1H(1), or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Partner CLNY pursuant to Section 15.1.B 15.1B hereof, neither the Tendering Party nor, to the best of its such Tendering Party’s knowledge, any other Person Related Party, shall Beneficially or Constructively own (as defined in CLNY’s charter) REIT Shares in violation of the Ownership Limit; and. (4) In connection with any Special Redemption, the General Partner CLNY shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Company, the Managing Member or the General Partner CLNY to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party Redemption or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B 15.1B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Colony Financial, Inc.)

Redemption Rights of Qualifying Parties. A. After the expiration of the applicable Redemption Hold Initial Holding Period, a Qualifying Common Party shall have the right (subject to the terms and conditions set forth herein) (the “Common Redemption Right”) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such a Common Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Common Units”) in exchange (a “Common Redemption”) for the Common Unit Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Common Units at the request of the Holder thereof Qualifying Common Party prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Common Redemption shall be exercised pursuant to a Common Unit Notice of Redemption delivered to the General Partner by the Qualifying Common Party when exercising the Redemption right (the “Common Tendering Party”). The Partnership’s obligation to effect a Common Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Common Tendering Party that the General Partner it declines to acquire some or all of the Tendered Common Units under Section 15.1.B hereof following receipt of a Common Unit Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Common Redemption, the Common Unit Cash Amount shall be delivered as a certified or bank check payable to the Common Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that tenth (10th) Business Day following the date on which the General Partner may elect to cause receives a Common Unit Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountCommon Tendering Party. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Common Units from the Common Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Common Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Common Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Common Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Common Tendering Party’s exercise of its Common Redemption right Right with respect to such Tendered Common Units and (2) such transaction shall be treated, for federal Federal income tax purposes, as a transfer by the Common Tendering Party of such Tendered Common Units to the General Partner in LA\4346025.7 exchange for the Common Unit REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Common Tendering Party shall sell such number of the Tendered Common Units to the General Partner in exchange for a number of REIT Shares equal to the product of the Common Unit REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Common Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, representations and investment letters, legal opinions or other instruments letters as reasonably necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Common Units by the General Partner pursuant to this Section 15.1.B, the Common Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Common Units and, upon notice to the Common Tendering Party by the General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the General Partner has elected to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Common Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Common Unit REIT Shares Amount and the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and, to the extent applicable, the Securities Act and relevant state securities or “blue sky” laws. Neither any Common Tendering Party whose Tendered Common Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Common Tendering Party shall be deemed the owner of such REIT Shares and such Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise all rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Common Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Common Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Common Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Common Units pursuant to Section 15.1.B hereof:: LA\4346025.7 (1) The Without limiting Section 15.1.H, the Partnership may elect to raise funds for the payment of the Common Unit Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Common Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. Without limiting Section 15.1.H, any proceeds from a public offering that are in excess of the Common Unit Cash Amount shall be for the sole benefit of the General Partner. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Common Unit Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Common Unit Cash Amount from the day after the Specified Redemption Date to and including the date on which the Common Unit Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Common Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Hudson Pacific Properties, L.P.)

Redemption Rights of Qualifying Parties. A. (a) After the applicable Redemption Hold Twelve-Month Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion (but not less than all) of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on as provided below; provided that a Qualifying Party may only deliver a Notice of Redemption, as provided below, at least ten (10) Business Days before the Specified last Business Day of a calendar month (with any late Notice of Redemption Datebeing null). The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Twelve-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1(g)(iv) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B 15.1(b) hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as paid by a certified or bank check payable mailed to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available fundsby wire transfer, in each case, on or before the Specified Redemption Date; provided, however, that last Business Day of the month in which the General Partner may elect to cause receives a Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountTendering Party. B. (b) Notwithstanding the provisions of Section 15.1.A 15.1(a) hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership LimitLimit and the transfer restrictions and other limitations of the Charter, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT SharesShares (the percentage of such Tendered Units to be acquired by the General Partner in exchange for REIT Shares being referred to as the “Applicable Percentage”). If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B15.1(b), in which case (1) the General Partner shall assume directly Partner’s issuance and delivery of the obligation with respect thereto and REIT Shares shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner Partnership so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B15.1(b), the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and any other restrictions provided in the Charter, the Securities Act and relevant state securities or “blue sky” laws. Neither None of any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B15.1(b), any Partner, any Assignee nor or any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B15.1(b), with the SECSEC under the Securities Act or the Exchange Act, with any stock exchange or with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and and, if applicable, Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B 15.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. (c) Notwithstanding the provisions of Section 15.1.A 15.1(a) and 15.1.B 15.1(b) hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership LimitCharter. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof would be in violation of this Section 15.1.C15.1(c), it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B 15.1(b) hereof or cash otherwise payable under Section 15.1.A 15.1(a) hereof. D. (d) If the General Partner does not elect exercise its right to acquire the Tendered Units pursuant to Section 15.1.B 15.1(b) hereof: (1i) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner to contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts of offering proceeds it may receive to the Partnership for an additional General Limited Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2ii) If the Cash Amount is not paid on or before the first Business Day after the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day first Business Day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. (e) Notwithstanding the provisions of Section 15.1.B 15.1(b) hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. (f) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 15.1(c) hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B 15.1(b) hereof) pursuant to this Section 15.1: (1i) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B 15.1(b) hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Partner’s Partnership Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3ii) If (iA) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (iiB) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B15.1(b), such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution Shares that relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4iii) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5iv) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, Agreement until the Specified Redemption Date (and thereafter unless such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A 15.1(a) hereof or transferred to the General Partner and paid for, for by the issuance of the REIT Shares, Shares pursuant to Section 15.1.B hereof on the Specified Redemption Date15.1(b) hereof). Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. (g) In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1i) A written affidavit, dated the same date as the Notice of Redemption, (aA) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i1) such Tendering Party and (ii2) to the best of their its knowledge any Related Party and (bB) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof, neither the Tendering Party nor to the best of their its knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2ii) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date;; and (3iii) An undertaking to certify, at and as a condition of to the closing of (iA) the Redemption or (iiB) the acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date, that either (a1) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(115.1(g)(i) or (b2) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 15.1(b) hereof, neither the Tendering Party nor, nor to the best of its knowledge, knowledge any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and. (4iv) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B 15.1(b) of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Guide Holdings Inc)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Periodfirst Twelve-Month Period (or such shorter or longer period as may be provided in a particular Partner Schedule), a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (such Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”called "TENDERED UNITS") in exchange (a “Redemption”"REDEMPTION") for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”"TENDERING PARTY"). The Partnership’s 's obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of until and unless there has been a Notice of Redemption Declination and (ii) before the first Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s 's sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A 8.6.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership LimitLimit and the transfer restrictions and other limitations of the Charter, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”"APPLICABLE PERCENTAGE") of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s 's view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B8.6.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B8.6.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s 's notice relates shall not accrue or arise. A number of REIT Shares equal to the The product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable nonassessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Bylaws of the General Partner, the Securities Act and relevant state securities or "blue sky" laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B8.6.B, any other Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B8.6.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B 8.6.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A Sections 8.6.A and 15.1.B 8.6.B hereof, no Tendering Party (i) where the Tendering Parties Redemption would consist of less than all the Partnership Units held by Partners other than the General Partner, shall be entitled to elect or effect a Redemption to the extent that the aggregate Partnership Units of the Limited Partners would be reduced, as a result of the Redemption (or the acquisition of the Tendered Units by the General Partner pursuant to Section 8.6.B hereof), to less than one percent (1%) of all Partnership Units outstanding immediately prior to delivery of the Notice of Redemption and (ii) shall have no any rights under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership LimitCharter. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof would be in violation of this Section 15.1.C8.6.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A 8.6.B hereof. D. If In the event that the General Partner does not elect declines or fails to acquire the Tendered Units exercise its purchase rights pursuant to Section 15.1.B hereof:8.6.B hereof following receipt of a Notice of Redemption (a "DECLINATION"): (1) The General Partner shall give notice of such Declination to the Tendering Party on or before the close of business on the Cut-Off Date. The failure of the General Partner to give notice of such Declination by the close of business on the Cut-Off Date shall itself constitute a Declination. (2) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B 8.6.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for the REIT Shares Amount if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 8.6.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B 8.6.B hereof) pursuant to this Section 15.18.6: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B 8.6.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest Interests comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand five hundred (1,000500) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand five hundred (1,000500) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Each Tendering Party surrenders (a) may effect a Redemption only once in each Twelve-Month Period (unless the restriction contained in this Section 8.6.F(3)(a) is waived by the General Partner in its Tendered Units sole and absolute discretion) and (b) may not effect a Redemption during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders shareholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) Without the Consent of the General Partner (which may be given or withheld in its sole and absolute discretion), no Tendering Party may effect a Redemption within ninety (90) days following the closing of any prior registered public offering of REIT Shares by the General Partner. (5) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the XxxxHart-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (56) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A 8.6.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, the Tendering Party shall have no rights as a stockholder shareholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. For purposes of determining compliance with the restrictions set forth in this Section 8.6.F, all Partnership Units beneficially owned by a Related Party of a Tendering Party shall be considered to be owned or held by such Tendering Party. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner8.6, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as as, and accompanying, the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6), 856(h), 856(d)(2)(B) and 856(h856(d)(5), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(18.6.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, neither the Tendering Party nor, to the best of its knowledge, nor any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Excel Realty Trust Inc)

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Redemption Rights of Qualifying Parties. A. After the expiration of the applicable Redemption Hold Initial Holding Period, a Qualifying Common Party shall have the right (subject to the terms and conditions set forth herein) (the “Common Redemption Right”) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such a Common Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Common Units”) in exchange (a “Common Redemption”) for the Common Unit Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Common Units at the request of the Holder thereof Qualifying Common Party prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Common Redemption shall be exercised pursuant to a Common Unit Notice of Redemption delivered to the General Partner by the Qualifying Common Party when exercising the Redemption right (the “Common Tendering Party”). The Partnership’s obligation to effect a Common Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Common Tendering Party that the General Partner it declines to acquire some or all of the Tendered Common Units under Section 15.1.B hereof following receipt of a Common Unit Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Common Redemption, the Common Unit Cash Amount shall be delivered as a certified or bank check payable to the Common Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that tenth (10th) Business Day following the date on which the General Partner may elect to cause receives a Common Unit Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountCommon Tendering Party. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Common Units from the Common Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Common Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Common Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Common Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Common Tendering Party’s exercise of its Common Redemption right Right with respect to such Tendered Common Units and (2) such transaction shall be treated, for federal Federal income tax purposes, as a transfer by the Common Tendering Party of such Tendered Common Units to the General Partner in LA\4346025.6 exchange for the Common Unit REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Common Tendering Party shall sell such number of the Tendered Common Units to the General Partner in exchange for a number of REIT Shares equal to the product of the Common Unit REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Common Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, representations and investment letters, legal opinions or other instruments letters as reasonably necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Common Units by the General Partner pursuant to this Section 15.1.B, the Common Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Common Units and, upon notice to the Common Tendering Party by the General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the General Partner has elected to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Common Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Common Unit REIT Shares Amount and the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and, to the extent applicable, the Securities Act and relevant state securities or “blue sky” laws. Neither any Common Tendering Party whose Tendered Common Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Common Tendering Party shall be deemed the owner of such REIT Shares and such Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise all rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Common Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Common Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Common Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Common Units pursuant to Section 15.1.B hereof:: LA\4346025.6 (1) The Without limiting Section 15.1.H, the Partnership may elect to raise funds for the payment of the Common Unit Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Common Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. Without limiting Section 15.1.H, any proceeds from a public offering that are in excess of the Common Unit Cash Amount shall be for the sole benefit of the General Partner. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Common Unit Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Common Unit Cash Amount from the day after the Specified Redemption Date to and including the date on which the Common Unit Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Common Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Hudson Pacific Properties, L.P.)

Redemption Rights of Qualifying Parties. A. (a) After the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership Company to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership Company may, in the General PartnerManaging Member’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner Managing Member first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Company or the General Partner Managing Member to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B 15.1(b) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner Managing Member by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The PartnershipCompany’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership Company until the earlier of (i) the date the General Partner Managing Member notifies the Tendering Party that the General Partner Managing Member declines to acquire some or all of the Tendered Units under Section 15.1.B 15.1(b) hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General PartnerManaging Member’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner Managing Member may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner Managing Member to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. (b) Notwithstanding the provisions of Section 15.1.A 15.1(a) hereof, on or before the close of business on the Cut-Off Date, the General Partner Managing Member may, in the General PartnerManaging Member’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner Managing Member elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the General Partner Managing Member shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner Managing Member elects to acquire any of the Tendered Units for REIT Shares, the General Partner Managing Member shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B15.1(b), in which case (1i) the General Partner Managing Member shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2ii) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner Managing Member in exchange for the REIT Shares Amount. If the General Partner Managing Member so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner Managing Member in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner Managing Member may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner Managing Member to cause additional REIT Shares to be issued. The Tendering Party shall submit (iA) such information, certification or affidavit as the General Partner Managing Member may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (iiB) such written representations, investment letters, legal opinions or other instruments necessary, in the General PartnerManaging Member’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner Managing Member pursuant to this Section 15.1.B15.1(b), the Tendering Party shall no longer have the right to cause the Partnership Company to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner Managing Member given on or before the close of business on the Cut-Off Date that the General Partner Managing Member has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the obligation of the Partnership Company to effect a Redemption of the Tendered Units as to which the General PartnerManaging Member’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner Managing Member as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner Managing Member pursuant to this Section 15.1.B15.1(b), any PartnerMember, any Assignee nor any other interested Person shall have any right to require or cause the General Partner Managing Member to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B15.1(b), with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner Managing Member and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner Managing Member pursuant to this Section 15.1.B 15.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner Managing Member determines to be necessary or advisable in order to ensure compliance with such laws. C. (c) Notwithstanding the provisions of Section 15.1.A 15.1(a) and 15.1.B 15.1(b) hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership Company to redeem Common Units if the acquisition of such Common Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof would be in violation of this Section 15.1.C15.1(c), to the fullest extent permitted by law, it shall be null and void ab initiovoid, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner Managing Member under Section 15.1.B 15.1(b) hereof or cash otherwise payable under Section 15.1.A 15.1(a) hereof. D. (d) If the General Partner Managing Member does not elect to acquire the Tendered Units pursuant to Section 15.1.B 15.1(b) hereof: (1i) The Partnership Company may elect to raise funds for the payment of the Cash Amount either (aA) by requiring that the General Partner Managing Member contribute to the Partnership Company funds from the proceeds of a registered public offering by the General Partner Managing Member of REIT Shares sufficient to purchase the Tendered Units or (bB) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the PartnershipCompany. Any proceeds from a public offering that are in excess of the Cash Amount shall be for the sole benefit of the Managing Member. The General Partner Managing Member shall make a Capital Contribution of any such amounts to the Partnership Company for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Managing Member Interest adjustmentin accordance with Section 4.3(e). (2ii) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. (e) Notwithstanding the provisions of Section 15.1.B 15.1(b) hereof, the General Partner Managing Member shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. (f) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 15.1(c) hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof) pursuant to this Section 15.1: (1i) All Partnership Common Units acquired by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Managing Member Interest comprised of the same number of Partnership Common Units. (2ii) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner Member or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General PartnerManaging Member. (3iii) If (iA) a Tendering Party surrenders its Tendered Units during the period after the Partnership Company Record Date with respect to a distribution and before the record date established by the General Partner Managing Member for a distribution to its stockholders of some or all of its portion of such Partnership Company distribution, and (iiB) the General Partner Managing Member elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B15.1(b), such Tendering Party shall pay to the General Partner Managing Member on the Specified Redemption Date an amount in cash equal to the portion of the Partnership Company distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4iv) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5v) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner Member or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership Company pursuant to Section 15.1.A 15.1(a) hereof or transferred to the General Partner Managing Member and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof, the Tendering Party shall have no rights as a stockholder of the General Partner Managing Member with respect to the REIT Shares issuable in connection with such acquisition. G. (g) In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General PartnerManaging Member, the Tendering Party shall submit the following to the General PartnerManaging Member, in addition to the Notice of Redemption: (1i) A written affidavit, dated the same date as the Notice of Redemption, (aA) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (iI) such Tendering Party and (iiII) to the best of their knowledge any Related Party and (bB) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2ii) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date; (3iii) An undertaking to certify, at and as a condition of the closing of (iA) the Redemption or (iiB) the acquisition of Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date, that either (aI) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(115.1(g)(i) or (bII) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner Managing Member pursuant to Section 15.1.B 15.1(b) hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4iv) In connection with any Special Redemption, the General Partner Managing Member shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Company or the General Partner Managing Member to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B 15.1(b) of this Agreement. H. (h) Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Kimco Realty OP, LLC)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Period, a (a) A Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership Company to redeem (a “Redemption”) all or a portion of the Partnership Common Class A Units held by such Tendering Qualifying Party (Partnership Common Class A Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash applicable OP Unit Amount payable on the applicable Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior right to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (require a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner Company by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The PartnershipCompany’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of Company (i) the date the General Partner notifies the Tendering Party that the General Partner declines with respect to acquire some or all of the any Tendered Units under as to which the Operating Company has exercised its purchase rights pursuant to Section 15.1.B 15.1(b) hereof following receipt of a Notice of Redemption Redemption, and (ii) until the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash OP Unit Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. (b) Notwithstanding the provisions of Section 15.1.A 15.1(a) hereof, on or before the close of business on the Cut-Off Date, the General Partner Operating Company may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner OP Unit Amount calculated based on the portion of Tendered Units it elects to acquire some or all in exchange for OP Units. The percentage of the Tendered Units that the Operating Company elects to acquire pursuant to this Section 15.1.B, 15.1(b) is referred to as the General Partner shall give written notice thereof “Opco Acquired Percentage,” and the percentage of Tendered Units that the Operating Company does not elect to acquire is referred to as the Tendering Party on or before the close of business on the Cut-Off Date. “Company Acquired Percentage.” If the General Partner Operating Company elects to acquire any of the Tendered Units for REIT SharesUnits, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, then on the Specified Redemption Date, the Tendering Party shall sell such number the Opco Acquired Percentage of the Tendered Units to the General Partner Operating Company in exchange for a number of REIT Shares OP Units equal to the product of the REIT Shares OP Unit Amount and the Applicable Opco Acquired Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General PartnerOperating Company’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner Operating Company pursuant to this Section 15.1.B15.1(b), the Tendering Party shall no longer have the right to cause the Partnership Company to effect a Redemption of such the Opco Acquired Percentage of Tendered Units Units, and, upon notice to the Tendering Party by the General Partner Operating Company, given on or before the close of business on the Cut-Off Date Date, that the General Partner Operating Company has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the obligation of the Partnership Company to effect a Redemption of the Opco Acquired Percentage of Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. (c) If the Operating Company declines to purchase all of the Tendered Units pursuant to Section 15.1(b) (a “Declination”): (i) The Operating Company shall give notice of such Declination to the Tendering Party on or before the close of business on the Cut-Off Date. A The failure of the Operating Company to give notice of such Declination by the close of business on the Cut-Off Date shall be deemed to be an election by the Operating Company to acquire all of the Tendered Units in exchange for OP Units. (ii) In order to enable the Company to satisfy its Redemption obligation, prior to the Specified Redemption Date, the Operating Company shall contribute to the Company a number of REIT Shares OP Units (which the Company shall deliver, or direct that the Operating Company deliver, to the Tendering Party) equal to the product of the Applicable Percentage OP Unit Amount and the REIT Shares AmountCompany Acquired Percentage. (iii) On the Specified Redemption Date, the Tendering Party shall Transfer to the Company the Company Acquired Percentage of the Tendered Units, in exchange for a number of OP Units equal to the product of the OP Unit Amount and the Company Acquired Percentage. The Tendering Party shall submit such written representations, investment letters, legal opinions or other instruments necessary, in the Company’s view, to effect compliance with the Securities Act. (d) Notwithstanding anything herein to the contrary, with respect to any Redemption (or any tender of Class A Units for Redemption if the Tendered Units are acquired by Operating Company pursuant to Section 15.1(b) hereof) pursuant to this Section 15.1: (i) Without the consent of the Operating Company, no Tendering Party may effect a Redemption for less than 200,000 Class A Units or, if such Tendering Party holds less than 200,000 Class A Units, all of the Class A Units held by such Tendering Party. (ii) If a Tendering Party surrenders Tendered Units during the period after the Company Record Date with respect to a distribution payable to Holders of Class A Units, and before the record date established by the Operating Company for a distribution to its members of some or all of its portion of such Company distribution, then such Tendering Party shall pay to the Operating Company on the Specified Redemption Date an amount in cash equal to the Company distribution paid or payable in respect of such Tendered Units. (iii) The consummation of each Redemption hereunder shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended. (iv) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.4 hereof) all Class A Units subject to any Redemption, and be treated as a Member or an Assignee, as applicable, with respect to such Class A Units for all purposes of this Agreement, until the Specified Redemption Date and until such Tendered Units are transferred to the Operating Company or the Company, as the case may be. Until a Specified Redemption Date and an acquisition of the Tendered Units by the Operating Company or the Company, as the case may be, the Tendering Party shall have no rights as a member of the Operating Company with respect to the OP Units issuable in connection with such acquisition. (v) All OP Units delivered by the Operating Company pursuant to Section 15.1(a) or Section 15.1(b), or delivered by the Company to a Tendering Party pursuant to Section 15.1(b), shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rightsissued OP Units, free of any pledge, lien, encumbrance or restriction, other than any restrictions provided in the Ownership Limitlimited liability company agreement of the Operating Company, the Securities Act and relevant state securities or “blue sky” laws. . (vi) Neither any Tendering Party whose Tendered Units are acquired by the General Partner Company or the Operating Company pursuant to this Section 15.1.B15.1, any PartnerMember, any Assignee nor any other interested Person shall have any right under this Agreement to require or cause the General Partner Operating Company or the Company to register, qualify or list any REIT Shares OP Units owned or held by such Person, whether or not such REIT Shares OP Units are issued pursuant to this Section 15.1.B15.1, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner Operating Company or the Parent and any such Person. . (vii) Notwithstanding any delay in such deliverydelivery of OP Units, the Tendering Party shall be deemed the owner of such REIT Shares and Rights OP Units for all purposes, including, without limitation, rights to vote or consent, receive dividendsdistributions, and exercise rights, as of the Specified Redemption Exchange Date. REIT Shares . (viii) OP Units issued upon an acquisition of the Tendered Units by the General Partner Company or the Operating Company pursuant to this Section 15.1.B 15.1 may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner Operating Company in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding (e) If any Redemption of Tendered Units would cause the provisions aggregate number of Section 15.1.A OP Units owned by the Parent and 15.1.B hereofits wholly owned Subsidiaries to be less than 50.1% of the total number of OP Units outstanding after giving effect to such Redemption, then the Tendering Parties Parent shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect right to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT a number of Class A Common Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of OP Unit Amount for such Tendered Units, multiplied by the Partnership distribution Adjustment Factor then in respect of effect; provided, however, that the Tendered Units exchanged for REIT Shares, insofar as Parent shall not have such distribution relates right if (i) the Company has issued any equity securities that rank senior to the same period for which such Tendering Party would receive Class A Units, (ii) there is a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, Preferred Return Shortfall with respect to such Partnership Common Units for all purposes of this AgreementTendered Units, until (iii) the Company is insolvent at the time such Partnership Common Tendered Units are either paid tendered for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (iiiv) the acquisition a Liquidating Event occurs. If Parent exercises such right, all references herein to “Redemption” shall be deemed to refer to such exchange of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Datefor Class A Common Shares, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party all terms and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations provisions applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units a Redemption shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled apply to such right of Redemption) in accordance with their termstransaction mutatis mutandis.

Appears in 1 contract

Samples: Operating Agreement (Five Point Holdings, LLC)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Twelve-Month Period, a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (such Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “"Tendered Units") in exchange (a "Redemption") for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the "Tendering Party"). The Partnership’s 's obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of until and unless there has been a Notice of Redemption Declination and (ii) before the Business Day following the Cut-Off Date. Regardless of the binding or non-binding nature of a pending Redemption, a Tendering Party shall have no right to receive distributions with respect to any Tendered Units (other than the Cash Amount) paid after delivery of the Notice of Redemption, whether or not the Partnership Record Date for such distribution precedes or coincides with such delivery of the Notice of Redemption; provided, however, that in the event that the General Partner on behalf of the Partnership elects to fund the Cash Amount with the proceeds of an Offering Funding pursuant to Section 8.6.D hereof, the Tendering Party's right to receive distributions shall not be suspended as hereinbefore provided and such Tendering Party shall have the right to receive distributions actually made hereunder prior to the date of the closing of the Offering Funding whose proceeds are used to pay the Cash Amount. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s 's sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A 8.6.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership LimitLimit and the transfer restrictions and other limitations of the Charter, elect to acquire some or all (such percentage being referred to as the "Applicable Percentage") of the Tendered Units from the Tendering Party in exchange for the REIT Shares Amount calculated based on the portion of Tendered Units it elects to acquire in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.BIn making such election, the General Partner shall give written notice thereof to the Tendering Party on act in a fair, equitable and reasonable manner that neither prefers one group or before the close class of business on the Cut-Off Date. If the General Partner elects to acquire any Qualifying Parties over another nor discriminates against a group or class of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares AmountQualifying Parties. If the General Partner so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s 's view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B8.6.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B8.6.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s 's notice relates shall not accrue or arise. A number of REIT Shares equal to the The product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable accessible REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Bylaws of the General Partner, the Securities Act and relevant state securities or "blue sky" laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B8.6.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause 42 44 the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B8.6.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B 8.6.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. The Special Limited Partner will be granted registration rights with respect to the REIT Shares Amount, if any, delivered pursuant hereto to the Special Limited Partner in exchange for Tendered Units. C. Notwithstanding the provisions of Section 15.1.A 8.6.A and 15.1.B 8.6.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights with respect to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof would be in violation of this Section 15.1.C8.6.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A 8.6.B hereof. D. If In the event that the General Partner does not elect declines or fails to acquire the Tendered Units exercise its purchase rights pursuant to Section 15.1.B hereof:8.6.B hereof following receipt of a Notice of Redemption (a "Declination"): (1) The General Partner shall give notice of such Declination to the Tendering Party on or before the close of business on the Cut-Off Date. The failure of the General Partner to give notice of such Declination by the close of business on the Cut-Off Date shall itself constitute a Declination. (2) Subject to Section 11.6.D, the General Partner on behalf of the Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that contribution by the General Partner contribute to the Partnership of funds from the proceeds of a private placement or registered public offering (each, an "Offering Funding") by the General Partner of a number of REIT Shares sufficient or other securities of the REIT ("Offering Funding Shares") equal to purchase the REIT Shares Amount with respect to the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The . (3) Promptly upon the General Partner shall make a Capital Contribution Partner's receipt of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle Notice of Redemption and the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions giving notice of Section 15.1.B hereofits Declination, the General Partner shall not, under any circumstances, elect give notice (a "Single Funding Notice") to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of all Qualifying Parties then holding a Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may beinterest therein) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of having Redemption rights pursuant to this Section 15.1, except as otherwise Consented 8.6 and require that all such Qualifying Parties elect whether or not to effect a Redemption of their Partnership Common Units to be funded through an Offering Funding (if an Offering Funding has been elected by the General Partner, ) or otherwise. In the Tendering event that any such Qualifying Party shall submit the following elects to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of effect such a Redemption, (a) disclosing the actual it shall give notice thereof and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series number of Partnership Common Units entitled to be made subject thereto in writing to the General Partner within ten (10) Business Days after receipt of the Single Funding Notice, and such Qualifying Party shall be treated as a Tendering Party for all purposes of this Section 8.6. In the event that a Qualifying Party does not so elect, it shall be deemed to have waived its right of Redemption) in accordance with their terms.to effect a

Appears in 1 contract

Samples: Limited Partnership Agreement (Fortress Investment Corp)

Redemption Rights of Qualifying Parties. A. After the Twelve-Month Period applicable Redemption Hold Periodto such Partnership Common Units and subject to Section 11.6D, a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem (a “Redemption”) all or a portion of the Partnership Common Units held by such Tendering Qualifying Party (such Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the such Qualifying Party when exercising the Redemption right (the “Tendering Party”)) when exercising the Redemption right. The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of until and unless there has been a Notice of Redemption Declination and (ii) before the Business Day following the Cut-Off Date. Regardless of the binding or non-binding nature of a pending Redemption, a Tendering Party shall have no right to receive distributions with respect to any Tendered Units (other than the Cash Amount) paid after delivery of the Notice of Redemption, whether or not the Partnership Record Date for such distribution precedes or coincides with such delivery of the Notice of Redemption; provided, however, that in the event that the General Partner on behalf of the Partnership elects to fund the Cash Amount with the proceeds of an Offering Funding pursuant to Section 8.6D hereof, the Tendering Party’s right to receive distributions shall not be suspended as hereinbefore provided and such Tendering Party shall have the right to receive distributions actually made hereunder prior to the date of the closing of the Offering Funding the proceeds of which are used to pay the Cash Amount. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A 8.6A hereof, on or before the close of business on the Cut-Off Date, the General Partner REIT Parties may, in the General Partner’s their sole and absolute discretion but subject to the Ownership LimitLimit and the transfer restrictions and other limitations of the Charter, elect to acquire acquire, some or all of the Tendered Units from the Tendering Party (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares AmountConsideration. In making such election, the REIT Parties shall act in a fair, equitable and reasonable manner that neither prefers one group or class of Qualifying Parties over another nor discriminates against a group or class of Qualifying Parties. If the General Partner any REIT Party so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number the Applicable Percentage of the Tendered Units to the General Partner REIT Party in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issuedConsideration. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner Parent REIT may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, view of the REIT Party to effect compliance with the Securities Act. In the event of a purchase of the any Tendered Units by the General Partner a REIT Party pursuant to this Section 15.1.B8.6B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner a REIT Party given on or before the close of business on the Cut-Off Date Date, that the General Partner REIT Party has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B8.6B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice by the REIT Party relates shall not accrue or arise. A number of The REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, Consideration shall be delivered by the General Partner REIT Party as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Bylaws of the Parent REIT, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner a REIT Party pursuant to this Section 15.1.B8.6B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner Parent REIT to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B8.6B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner Parent REIT and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner Parent REIT pursuant to this Section 15.1.B 8.6B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner Parent REIT in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A Sections 8.6A and 15.1.B 8.6B hereof, the no Tendering Parties Party shall have no any rights (including any right to a Redemption pursuant to Section 8.6A) under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights with respect to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner a REIT Party pursuant to Section 15.1.B 8.6B hereof would be in violation of this Section 15.1.C8.6C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner Parent REIT under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A 8.6B hereof. D. If To the General Partner does not elect extent that the REIT Parties decline or fail to acquire the exercise their purchase rights for all Tendered Units pursuant to Section 15.1.B hereof:8.6B hereof following receipt of a Notice of Redemption (a “Declination”): (1) The General Partner shall give notice of such Declination to the Tendering Party on or before the close of business on the Cut-Off Date. The failure of the General Partner to give notice of such Declination by the close of business on the Cut-Off Date shall itself constitute a Declination. (2) Subject to Section 11.6D, the Parent REIT on behalf of the Partnership may elect to raise funds for the payment of all or any percentage of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership contribution by a REIT Party of funds from the proceeds of a private placement or registered public offering (each, an “Offering Funding”) by the General Partner Parent REIT of a number of REIT Shares sufficient to purchase or other securities of the Tendered Units Parent REIT (“Offering Funding Shares”) or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The . (3) If an Offering Funding has been elected by the General Partner, promptly upon the General Partner ‘s receipt of the Notice of Redemption and the General Partner giving notice of its Declination, the General Partner shall make give notice (a Capital Contribution “Single Funding Notice”) to all Qualifying Parties then holding a Partnership Interest (or an interest therein) and having Redemption rights pursuant to this Section 8.6 and require that all such Qualifying Parties elect whether or not to effect a Redemption of their Partnership Common Units to be funded through an Offering Funding. In the event that any such amounts Qualifying Party elects to effect such a Redemption, it shall give notice thereof and of the number of Partnership for an additional General Partner Interest. Any such contribution shall entitle Common Units to be made subject thereto in writing to the General Partner within ten (10) Business Days after receipt of the Single Funding Notice, and such Qualifying Party shall be treated as a Tendering Party for all purposes of this Section 8.6. In the event that a Qualifying Party does not so elect, it shall be deemed to an equitable Percentage Interest adjustment. (2) If have waived its right to effect a Redemption; provided, however, that the Cash Amount is General Partner shall not paid on or before the Specified Redemption Date, interest shall accrue with respect be required to the Cash Amount acquire Partnership Common Units pursuant to this Section 8.6D more than twice within a calendar year from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate)particular Qualifying Party. E. Notwithstanding the provisions of Section 15.1.B 8.6B hereof, the General Partner a REIT Party shall not, under any circumstances, elect to acquire any Tendered Units in exchange for the REIT Shares Consideration if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 8.6C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner a REIT Party pursuant to Section 15.1.B 8.6B hereof) pursuant to this Section 15.18.6: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B 8.6B hereof shall automaticallymay, and without further action requiredat the election of the General Partner, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand five hundred (1,000500) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand five hundred (1,000500) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Each Tendering Party surrenders (a) may effect a Redemption only once in each fiscal quarter of a twelve-month period, unless otherwise permitted by the General Partner, in its Tendered Units sole and absolute discretion and (b) may not effect a Redemption during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner Parent REIT for a distribution to its stockholders shareholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) Notwithstanding anything herein to the contrary, with respect to any Redemption or acquisition of Tendered Units by a REIT Party pursuant to Section 8.6B hereof, in the event that the General Partner gives notice to all Limited Partners (but excluding any Assignees) then owning Partnership Interests (a “Primary Offering Notice”) that the Parent REIT desires to effect a primary offering of its equity securities, then, unless the General Partner otherwise consents, commencement of the actions denoted in Section 8.6D hereof as to an Offering Funding, if any, with respect to any Notice of Redemption thereafter received, whether or not the Tendering Party is a Limited Partner, may be delayed until the earlier of (a) the completion of the primary offering or (b) ninety (90) days following the giving of the Primary Offering Notice. (5) Without the consent of the General Partner, no Tendering Party may effect a Redemption within ninety (90) days following the closing of any prior Offering Funding. (6) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner a REIT Party pursuant to Section 15.1.B 8.6B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (57) The Subject to Section 8.6A, the Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions provision of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A 8.6A hereof or transferred to the General Partner a REIT Party and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 8.6B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner a REIT Party pursuant to Section 15.1.B 8.6B hereof, the Tendering Party shall have no rights as a stockholder shareholder of the General Partner Parent REIT with respect to the REIT Shares issuable in connection with such acquisition. (8) Each Limited Partner covenants and agrees with each REIT Party that acquires Tendered Units that all Tendered Units shall be delivered to the appropriate REIT Party free and clear of all liens, claims and encumbrances whatsoever and should any such liens, claims and/or encumbrances exist or arise with respect to such Tendered Units, the REIT Party shall be under no obligation to acquire the same. Each Limited Partner further agrees that, in the event any state or local property transfer tax is payable as a result of the transfer of its Tendered Units to a REIT Party (or its designee), such Limited Partner shall assume and pay such transfer tax. (9) No Limited Partner may require a Redemption hereunder to the extent that the issuance of REIT Consideration pursuant to Section 8.6B hereof would violate ownership limitations contained in the Charter or would violate any REIT Requirement (notwithstanding that any such Tendered Units could otherwise be acquired for cash pursuant to Section 8.6A hereof). (10) No Tendering Party may require a Redemption hereunder if the issuance of REIT Consideration would be likely to cause the acquisition of such REIT Consideration by such Tendering Party to be “integrated” with any other distribution of common stock of the Parent REIT or of Limited Partnership Interests for purposes of complying with the Securities Act. For purposes of determining compliance with the restrictions set forth in this Section 8.6F, all Partnership Common Units beneficially owned by a Related Party of a Tendering Party shall be considered to be owned or held by such Tendering Party. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner8.6, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner a REIT Party pursuant to Section 15.1.B 8.6B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Partner a REIT Party pursuant to Section 15.1.B 8.6B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(18.6G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Partner a REIT Party pursuant to Section 15.1.B 8.6B hereof, neither the Tendering Party nor, to the best of its knowledge, nor any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Arbor Realty Trust Inc)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the applicable Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Rexford Industrial Realty, Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Period, a A Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the sum of the Cash Amount and the excess of such Holder’s Preferred Return Per Class A Unit with respect to the Class A Units being tendered over the aggregate amount previously distributed with respect to such Tendered Common Units pursuant to Section 5.1(ii) hereof payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B 15.1B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A 15.1A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B15.1B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that if the General Partner makes an election under this Section 15.1B to issue REIT Shares, the Specified Redemption Date for the Tendered Units to be exchanged for REIT Shares shall be the 10th Business Day after the date the General Partner gives notice of its election; provided, further, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 50 Business Days to the extent required for such issuance not to violate any black-out period on trading imposed by the General Partner or other General Partner policies then in effect and applicable to cause additional REIT Shares to be issuedemployees of the General Partner. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B15.1B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise, but does not affect the obligation under Section 15.1.A. with respect to the other Tendered Units. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B15.1B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B15.1B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B 15.1B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. Notwithstanding the foregoing, the Tendering Party shall have no right to receive any distribution paid with respect to Tendered Common Units if the record date for such distribution is on or after the Specified Redemption Date. Upon the closing of exchange of REIT Shares pursuant to this Section 15.1.B., the Partnership shall distribute an amount equal to the excess of such Holder’s Preferred Return Per Class A Unit with respect to Class A Units being exchanged over the aggregate amount previously distributed with respect to such Tendered Common Units pursuant to Section 5.1(ii) hereof through the date of exchange. Notwithstanding the foregoing, the Tendering Party shall have no right, with respect to receive any distribution paid with respect to Tendered Common Units if the record date for such distribution is on or after the Specified Redemption Date. C. Notwithstanding the provisions of Section 15.1.A 15.1A and 15.1.B 15.1B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B 15.1B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 15.1B hereof would be in violation of this Section 15.1.C15.1C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B 15.1B hereof or cash otherwise payable under Section 15.1.A 15.1A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B 15.1B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring requesting that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units (which the General Partner may agree to conduct in its sole discretion) or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustmentadditional Class B Common Units. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B 15.1B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 15.1C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B 15.1B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B 15.1B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Partnership Interest comprised of the same number of Partnership Class B Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B15.1B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B 15.1B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A 15.1A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 15.1B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 15.1B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 15.1B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 15.1B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B 15.1B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(115.1G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B 15.1B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (MacKenzie Realty Capital, Inc.)

Redemption Rights of Qualifying Parties. A. (a) After the Twelve-Month Period applicable Redemption Hold Periodto such Class A Units, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership Company to redeem all or a portion of the Partnership Common Class A Units held by such Tendering Party (Partnership Common Class A Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership Company may, in the General PartnerOperating Managing Member’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Twelve-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); providedprovided that, howeverunless waived by the Parent, that the General Partner Operating Managing Member first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1(e) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner Operating Managing Member by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The PartnershipCompany’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of Company (i) unless and until the date the General Partner notifies the Tendering Party that the General Partner Parent declines or fails to acquire some or all of the Tendered Units under exercise its purchase rights pursuant to Section 15.1.B 15.1(b) hereof following receipt of a Notice of Redemption (a “Declination”) and (ii) until the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General PartnerOperating Managing Member’s sole and absolute discretion, or if the Cash Amount exceeds $1 million, in immediately available funds, in each case, funds via a federal wire transfer on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. (b) Notwithstanding the provisions of Section 15.1.A 15.1(a) hereof, on or before the close of business on the Cut-Off Date, the General Partner Parent may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to acquire some or all (such percentage being referred to as the “Applicable Acquired Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT the Class A Common Shares Amount calculated based on the portion of Tendered Units it elects to acquire in exchange for Class A Common Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner Parent so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Partner Parent in exchange for a number of REIT Class A Common Shares equal to the product of the REIT Class A Common Shares Amount and the Applicable Acquired Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General PartnerParent’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner Parent pursuant to this Section 15.1.B15.1(b), the Tendering Party shall no longer have the right to cause the Partnership Company to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner Parent, given on or before the close of business on the Cut-Off Date Date, that the General Partner Parent has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the obligation of the Partnership Company to effect a Redemption of the Tendered Units as to which the General PartnerParent’s notice relates shall not accrue or arise. A number of REIT Class A Common Shares equal to the product of the Applicable Acquired Percentage and the REIT Class A Common Shares Amount, if applicable, shall be delivered by the General Partner Parent as duly authorized, validly issued, fully paid and non-assessable REIT Class A Common Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than any restrictions provided in the Ownership LimitParent LLC Agreement, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner Parent pursuant to this Section 15.1.B15.1(b), any PartnerMember, any Assignee nor any other interested Person shall have any right to require or cause the General Partner Parent to register, qualify or list any REIT Class A Common Shares owned or held by such Person, whether or not such REIT Class A Common Shares are issued pursuant to this Section 15.1.B15.1(b), with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner Parent and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Class A Common Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Class A Common Shares issued upon an acquisition of the Tendered Units by the General Partner Parent pursuant to this Section 15.1.B 15.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner Parent in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding (c) In the provisions event of Section 15.1.A and 15.1.B hereof, the Tendering Parties a Declination: (i) The Parent shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition give notice of such Common Units by the General Partner pursuant Declination to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights on or economic interests in REIT Shares otherwise issuable before the close of business on the Cut-Off Date. The failure of the Parent to give notice of such Declination by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If close of business on the General Partner does not elect Cut-Off Date shall be deemed to be an election by the Parent to acquire the Tendered Units pursuant to Section 15.1.B hereof:in exchange for Class A Common Shares. (1ii) The Partnership may elect to Company shall raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner Parent contribute to the Partnership Company funds from (i) the proceeds of a registered public offering by the General Partner Parent of REIT Class A Common Shares sufficient to purchase the Tendered Units or (bii) any other sources available to the Parent or its Subsidiaries, unless such requirement is waived by the Tendering Party, in which case the Company may fund such payment from any other available sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment). (2iii) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. (d) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof)contrary, with respect to any Redemption (or any tender of Partnership Common Class A Units for Redemption if the Tendered Units are acquired by the General Partner Parent pursuant to Section 15.1.B 15.1(b) hereof) pursuant to this Section 15.1: (1i) All Partnership Common Units acquired by Without the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised consent of the same number of Partnership Common Units. (2) Subject to the Ownership LimitOperating Managing Member, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common 200,000 Class A Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) holds less than one thousand (1,000) Partnership Common 200,000 Class A Units, all of the Partnership Common Class A Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3ii) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Company Record Date with respect to a distribution payable to Holders of Class A Units, and before the record date established by the General Partner Parent for a distribution dividend to its stockholders shareholders of some or all of its portion of such Partnership Company distribution, and (ii) the General Partner Parent elects to acquire any of such Tendered Units in exchange for REIT Class A Common Shares pursuant to Section 15.1.B15.1(b), then such Tendering Party shall pay to the General Partner Parent on the Specified Redemption Date an amount in cash equal to the portion of the Partnership Company distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units. (4iii) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner Parent pursuant to Section 15.1.B 15.1(b) hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (5iv) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 11.4 hereof) all Partnership Common Class A Units subject to any Redemption, and be treated as a Limited Partner Member or an Assignee, as applicable, with respect to such Partnership Common Class A Units for all purposes of this Agreement, until the Specified Redemption Date and until such Partnership Common Tendered Units are either paid for by the Partnership Company pursuant to Section 15.1.A 15.1(a) hereof or transferred to the General Partner Parent and paid for, for by the issuance of the REIT Shares, Class A Common Shares pursuant to Section 15.1.B hereof on the Specified Redemption Date15.1(b). Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner Parent pursuant to Section 15.1.B 15.1(b) hereof, the Tendering Party shall have no rights as a stockholder shareholder of the General Partner Parent with respect to the REIT Class A Common Shares issuable in connection with such acquisition. G. (e) In connection with an exercise of Redemption rights pursuant to this Section 15.1any Special Redemption, except as otherwise Consented to unless waived by the General PartnerParent, the Tendering Party shall submit the following to the General PartnerParent, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Company or the General Partner Operating Managing Member to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party Redemption or the issuance and sale of REIT Class A Common Shares to the Tendering Party pursuant to Section 15.1.B 15.1(b) of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Five Point Holdings, LLC)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold PeriodSubject to any Non-Managing Member Ancillary Agreement, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership Company to redeem all or a portion of the Partnership Membership Common Units held by such Tendering Qualifying Party (Partnership Membership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner Managing Member by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The PartnershipCompany’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of Company (i) the date the General Partner notifies the Tendering Party that the General Partner until and unless CLNS declines or fails to acquire some or all of the Tendered Units under exercise its purchase rights pursuant to Section 15.1.B hereof following receipt of a Notice of Redemption (a “Declination”) and (ii) unless CLNS agrees otherwise, until the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General PartnerManaging Member’s sole and absolute discretion, in immediately available funds, in each case, funds on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner CLNS may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, (the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any percentage of the Tendered Units for REIT Sharesso elected to be acquired, the General Partner shall issue and deliver such REIT Shares to “Applicable Percentage”) from the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the product of the REIT Shares AmountAmount and the Applicable Percentage. If the General Partner CLNS so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Partner CLNS in exchange for a number of Class A REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner CLNS may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General PartnerCLNS’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner CLNS pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership Company to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner CLNS, given on or before the close of business on the Cut-Off Date Date, that the General Partner CLNS has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership Company to effect a Redemption of the Tendered Units as to which the General PartnerCLNS’s notice relates shall not accrue or arise. A number of Class A REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner CLNS as duly authorized, validly issued, fully paid and non-assessable Class A REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Securities Act and relevant state securities or “blue sky” laws. If the amount of Class A REIT Shares to be issued in exchange for the Tendered Units is not a whole number of Class A REIT Shares, the Tendering Party shall be paid (i) that number of Class A REIT Shares that equals the nearest whole number less than such amount plus (ii) an amount of cash that CLNS determines, in its reasonable discretion, to represent the fair value of the remaining fractional Class A REIT Share that would otherwise be payable to the Tendering Party. Neither any Tendering Party whose Tendered Units are acquired by the General Partner CLNS pursuant to this Section 15.1.B, any PartnerMember, any Assignee nor any other interested Person shall have any right to require or cause the General Partner CLNS to register, qualify or list any Class A REIT Shares owned or held by such Person, whether or not such Class A REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement (including any Non-Managing Member Ancillary Agreement) between the General Partner CLNS and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such Class A REIT Shares and Rights for all purposes, including, without limitation, including rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. Class A REIT Shares issued upon an acquisition of the Tendered Units by the General Partner CLNS pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner CLNS in good faith determines to be necessary or advisable in order to ensure compliance with such lawslaws and CLNS’s charter. C. Notwithstanding the provisions of Section 15.1.A Sections 15.1.A, 15.1.B and 15.1.B 15.1.I hereof, (i) no Person shall be entitled to effect a Redemption for cash or an exchange for Class A REIT Shares to the Tendering Parties extent the ownership or right to acquire Class A REIT Shares pursuant to such exchange on the Specified Redemption Date could cause such Person (or any other Person) to violate the restrictions on ownership and transfer of Class A REIT Shares set forth in the Charter, after giving effect to any waivers or modifications of such restrictions by the Board of Directors, and (ii) no Person shall have no any rights under this Agreement that to acquire Class A REIT Shares which would otherwise be prohibited under the Charter, after giving effect to any waivers or modifications of such restrictions by the Charter and Board of Directors. D. In the event of a Declination: (1) CLNS shall have no rights to require the Partnership to redeem Common Units if the acquisition give notice of such Common Units by the General Partner pursuant Declination to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights on or economic interests in REIT Shares otherwise issuable before the close of business on the Cut-Off Date. The failure of CLNS to give notice of such Declination by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If close of business on the General Partner does not elect Cut-Off Date shall be deemed to be an election by CLNS to acquire the Tendered Units pursuant to Section 15.1.B hereof:in exchange for REIT Shares. (12) The Partnership Company may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner CLNS contribute to the Partnership Company funds from the proceeds of a registered public offering by the General Partner CLNS of Class A REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, including the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustmentCompany. (23) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B 15.1B hereof or Section 15.1J hereof, the General Partner shall not, under any circumstances, elect to acquire any if CLNS’s acquisition of Tendered Units in exchange for the REIT Shares if such acquisition Amount would be prohibited under the Charter, then (i) CLNS shall not elect to acquire such Tendered Units, and (ii) the Company shall not be obligated to effect a Redemption of such Tendered Units. For the avoidance of doubt, unless CLNS’s acquisition of Tendered Units in exchange for the REIT Shares Amount would be prohibited under the Charter, if Tendered Units are not exchanged for Class A REIT Shares, then the Cash Amount will be paid to the Tendering Party in accordance with the terms of Section 15.1.A hereof. F. Each Non-Managing Member covenants and agrees that all Membership Common Units delivered for redemption shall be delivered to the Company or CLNS, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither CLNS nor the Company shall be under any obligation to acquire Membership Common Units which are or may be subject to any liens. Each Non-Managing Member further agrees that, if any stamp, recording, documentary or similar tax is payable with respect to the Membership Common Units as a result of the transfer thereof to the Company or the CLNS, such Tendering Party shall assume and pay such tax. G. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Membership Common Units for Redemption if the Tendered Units are acquired by the General Partner CLNS pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by Without the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised consent of the same number of Partnership Common Units. (2) Subject to the Ownership LimitManaging Member, no Tendering Party (who is not a Former NSAM Unitholder) may effect a Redemption for (i) less than one thousand sixty-five (1,0001,065) Partnership Membership Common Units or (ii) any number of Membership Common Units that is not a multiple of seventy-one (71) or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) holds less than one thousand sixty-five (1,0001,065) Partnership Membership Common Units, all of the Partnership Membership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (32) If (i) a Tendering Party surrenders its Tendered Units during the period on or after the Partnership Company Record Date with respect to a distribution payable to Holders of Membership Common Units, and before the record date established by the General Partner CLNS for a distribution dividend to its stockholders of some or all of its portion of such Partnership Company distribution, and (ii) the General Partner elects to acquire CLNS acquires any of such Tendered Units in exchange for Class A REIT Shares pursuant to Section 15.1.B15.1.B on or after the Record Date for CLNS dividends, then such Tendering Party shall pay to the General Partner CLNS on the Specified Redemption Date an amount in cash equal to the portion of the Partnership Company distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units acquired by CLNS. (43) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner CLNS pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976. (54) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Membership Common Units subject to any Redemption, and be treated as a Limited Partner Member or an Assignee, as applicable, with respect to such Partnership Membership Common Units for all purposes of this Agreement, until the Specified Redemption Date and until such Partnership Common Tendered Units are either paid for by the Partnership Company pursuant to Section 15.1.A hereof or transferred to the General Partner CLNS and paid for, by the issuance of the Class A REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. 15.1.B. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner CLNS pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner CLNS with respect to the REIT Shares issuable in connection with such acquisition. G. In H. If CLNS shall be a party to any Transaction, each Membership Common Unit that is not converted into the right to receive cash, securities or other property or any combination thereof in connection with an exercise such Transaction shall thereafter be convertible into the kind and amount of Redemption rights pursuant to this Section 15.1cash, except as otherwise Consented to securities or other property or any combination thereof receivable upon the consummation of such Transaction by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice a holder of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), that number of REIT Shares by into which one Membership Common Unit was convertible immediately prior to such Transaction, assuming such holder of REIT Shares (i) such Tendering Party is not a Constituent Person or an affiliate of a Constituent Person and (ii) failed to exercise his or her rights of the election, if any, as to the best kind and amount of their knowledge cash, securities or other property or any Related Party and (b) representing thatcombination thereof receivable upon such Transaction; provided that if the cash, after giving effect securities or other property or any combination thereof receivable upon such Transaction is not the same for each REIT Share held immediately prior to the Redemption such Transaction by other than a Constituent Person or an acquisition affiliate thereof and in respect of which such rights of election shall not have been exercised (“Non-Electing Shares”), then for purposes of this Section 15.1.H the kind and amount of cash, securities or other property or any combination thereof receivable upon such Transaction by each Non-Electing Share shall be deemed to be the kind and amount so receivable per share by a plurality of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units Non-Electing Shares. CLNS shall not be entitled a party to any Transaction unless the right terms of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.Transaction are

Appears in 1 contract

Samples: Limited Liability Company Agreement (Colony NorthStar, Inc.)

Redemption Rights of Qualifying Parties. A. After the expiration of the applicable Redemption Hold Initial Holding Period, a Qualifying Common Party shall have the right (subject to the terms and conditions set forth herein) (the “Common Redemption Right”) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such a Common Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Common Units”) in exchange (a “Common Redemption”) for the Common Unit Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Common Units at the request of the Holder thereof Qualifying Common Party prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Common Redemption shall be exercised pursuant to a Common Unit Notice of Redemption delivered to the General Partner by the Qualifying Common Party when exercising the Redemption right (the “Common Tendering Party”). The Partnership’s obligation to effect a Common Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Common Tendering Party that the General Partner it declines to acquire some or all of the Tendered Common Units under Section 15.1.B hereof following receipt of a Common Unit Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Common Redemption, the Common Unit Cash Amount shall be delivered as a certified or bank check payable to the Common Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that tenth (10th) Business Day following the date on which the General Partner may elect to cause receives a Common Unit Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountCommon Tendering Party. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Common Units from the Common Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Common Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Common Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Common Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Common Tendering Party’s exercise of its Common Redemption right Right with respect to such Tendered Common Units and (2) such transaction shall be treated, for federal Federal income tax purposes, as a transfer by the Common Tendering Party of such Tendered Common Units to the General Partner in exchange for the Common Unit REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Common Tendering Party shall sell such number of the Tendered Common Units to the General Partner in exchange for a number of REIT Shares equal to the product of the Common Unit REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Common Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, representations and investment letters, legal opinions or other instruments letters as reasonably necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Common Units by the General Partner pursuant to this Section 15.1.B, the Common Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Common Units and, upon notice to the Common Tendering Party by the General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the General Partner has elected to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Common Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Common Unit REIT Shares Amount and the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and, to the extent applicable, the Securities Act and relevant state securities or “blue sky” laws. Neither any Common Tendering Party whose Tendered Common Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Common Tendering Party shall be deemed the owner of such REIT Shares and such Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise all rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Common Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Common Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Common Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Common Units pursuant to Section 15.1.B hereof: (1) The Without limiting Section 15.1.H, the Partnership may elect to raise funds for the payment of the Common Unit Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Common Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. Without limiting Section 15.1.H, any proceeds from a public offering that are in excess of the Common Unit Cash Amount shall be for the sole benefit of the General Partner. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Common Unit Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Common Unit Cash Amount from the day after the Specified Redemption Date to and including the date on which the Common Unit Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Common Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Common Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Common Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Common Tendering Party owns holds (as a Common Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Common Tendering Party, withoutunless, in each case, the Consent of otherwise agreed to by the General PartnerPartner in its sole and absolute discretion. (3) If (i) a Common Tendering Party surrenders its Tendered Common Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Common Units in exchange for REIT Shares pursuant to Section 15.1.B, such Common Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Common Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Common Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Common Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Common Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof, the Common Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of the Common Redemption rights Right pursuant to this Section 15.1, except as otherwise Consented to agreed by the General Partner, in its sole and absolute discretion, the Common Tendering Party shall submit the following to the General Partner, in addition to the Common Unit Notice of Redemption: (1) A written affidavit, dated the same date as the Common Unit Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Common Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof, neither the Common Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Common Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Common Tendering Party and to the best of its their knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof, neither the Common Tendering Party nor, nor to the best of its knowledge, their knowledge any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and. (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Common Units to the Common Tendering Party or the issuance and sale of REIT Shares to the Common Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Hudson Pacific Properties, L.P.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold first Twelve-Month Period, a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Redeemable Units held by such Tendering Party (Partnership Common such Redeemable Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for REIT Shares issuable on, or the Cash Amount payable on on, the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause as determined by the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreementin its sole discretion. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation A Tendering Party shall have no right to effect a receive distributions with respect to any Tendered Units (other than the Cash Amount) paid after delivery of the Notice of Redemption, however, shall whether or not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some Record Date for such distribution precedes or all coincides with such delivery of the Notice of Redemption. If the Partnership elects to redeem Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemptionfor cash, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner Partnership elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the redeem Tendered Units for REIT SharesShares rather than cash, then the Partnership shall direct the Previous General Partner shall to issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of set forth in this Section 15.1.B8.6B, in which case case, (1i) the Previous General Partner Partner, acting as a distinct legal entity, shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units right, and (2ii) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the Previous General Partner in exchange for REIT Shares. The percentage of the Tendered Units tendered for Redemption by the Tendering Party for which the Partnership elects to cause the Previous General Partner to issue REIT Shares Amount(rather than cash) is referred to as the “Applicable Percentage.” In making such election to cause the Previous General Partner to acquire Tendered Units, the Partnership shall act in a fair, equitable and reasonable manner that neither prefers one group or class of Qualifying Parties over another nor discriminates against a group or class of Qualifying Parties. If the General Partner so electsPartnership elects to redeem any number of Tendered Units for REIT Shares, rather than cash, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the Previous General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the Previous General Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the Previous General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the The product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the Previous General Partner as duly authorized, validly issued, fully paid and non-assessable accessible REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Bylaws of the Previous General Partner, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the Previous General Partner pursuant to this Section 15.1.B8.6B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the Previous General Partner or the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B8.6B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the Previous General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the Previous General Partner pursuant to this Section 15.1.B 8.6B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the Previous General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A 8.6A and 15.1.B 8.6B hereof, the Tendering Parties (i) where the Redemption would consist of less than all the Partnership Common Units held by Partners other than the General Partner and the Special Limited Partner, shall not be entitled to elect or effect a Redemption to the extent that the aggregate Percentage Interests of the Limited Partners (other than the Special Limited Partner) would be reduced, as a result of the Redemption, to less than one percent (1%) and (ii) shall have no rights under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership LimitCharter. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C8.6C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the Previous General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A 8.6B hereof. D. If In the event that the Partnership declines to cause the Previous General Partner to acquire all of the Tendered Units from the Tendering Party in exchange for REIT Shares pursuant to Section 8.6B hereof following receipt of a Notice of Redemption (a “Declination”): (1) The Previous General Partner or the General Partner does not elect shall give notice of such Declination to acquire the Tendered Units pursuant to Section 15.1.B hereof:Tendering Partner on or before the close of business on the Cut-Off Date. (12) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership such funds from the proceeds of a registered public offering (a “Public Offering Funding”) by the Previous General Partner of a number of REIT Shares sufficient (“Registrable Shares”) equal to purchase the REIT Shares Amount with respect to the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. (3) Promptly upon the General Partner’s receipt of the Notice of Redemption and the Previous General Partner or the General Partner giving notice of the Partnership’s Declination, the General Partner shall give notice (a “Single Funding Notice”) to all Qualifying Parties then holding a Partnership Interest (or an interest therein) and having Redemption rights pursuant to this Section 8.6 and require that all such Qualifying Parties elect whether or not to effect a Redemption of their Partnership Common Units to be funded through such Public Offering Funding. In the event that any such Qualifying Party elects to effect such a Redemption, it shall give notice thereof and of the number of Partnership Common Units to be made subject thereon in writing to the General Partner within ten (10) Business Days after receipt of the Single Funding Notice, and such Qualifying Party shall be treated as a Tendering Party for all purposes of this Section 8.6. In the event that a Qualifying Party does not so elect, it shall be deemed to have waived its right to effect a Redemption for the current Twelve-Month Period; provided, however, that the Previous General Partner shall not be required to acquire Partnership Common Units pursuant to this Section 8.6D more than twice within a Twelve-Month Period. Any proceeds from a Public Offering Funding that are in excess of the Cash Amount shall be for the sole benefit of the Previous General Partner and/or the General Partner. The General Partner and/or the Special Limited Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest and/or Limited Partner Interest. Any such contribution shall entitle the General Partner and the Special Limited Partner, as the case may be, to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B 8.6B hereof, the Previous General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for the REIT Shares Amount if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 8.6C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.18.6: (1) All Partnership Common Units acquired by the Previous General Partner pursuant to Section 15.1.B 8.6B hereof shall be contributed by the Previous General Partner to either or both of the General Partner and the Special Limited Partner in such proportions as the Previous General Partner, the General Partner and the Special Limited Partner shall determine. Any Partnership Common Units so contributed to the General Partner shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. Any Partnership Common Units so contributed to the Special Limited Partner shall remain outstanding. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand five hundred (1,000500) Partnership Common Redeemable Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand five hundred (1,000500) Partnership Common Redeemable Units, all of the Partnership Common Redeemable Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Each Tendering Party surrenders its Tendered Units (a) may effect a Redemption only once in each fiscal quarter of a Twelve-Month Period and (b) may not effect a Redemption during the period after the Partnership Record Date with respect to a distribution and before the record date established by the Previous General Partner for a distribution to its stockholders shareholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) Notwithstanding anything herein to the contrary, with respect to any Redemption or acquisition of Tendered Units by the Previous General Partner pursuant to Section 8.6B hereof, in the event that the Previous General Partner or the General Partner gives notice to all Limited Partners (but excluding any Assignees) then owning Partnership Interests (a “Primary Offering Notice”) that the Previous General Partner desires to effect a primary offering of its equity securities then, unless the Previous General Partner and the General Partner otherwise consent, commencement of the actions denoted in Section 8.6E hereof as to a Public Offering Funding with respect to any Notice of Redemption thereafter received, whether or not the Tendering Party is a Limited Partner, may be delayed until the earlier of (a) the completion of the primary offering or (b) ninety (90) days following the giving of the Primary Offering Notice. (5) Without the Consent of the Previous General Partner, no Tendering Party may effect a Redemption within ninety (90) days following the closing of any prior Public Offering Funding. (6) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (57) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions provision of Section 11.5 hereof) all Partnership Common Redeemable Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Redeemable Units for all purposes of this Agreement, until such Partnership Common Redeemable Units are either paid for by the Partnership pursuant to Section 15.1.A 8.6A hereof or transferred to the Previous General Partner (or directly to the General Partner or Special Limited Partner) and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 8.6B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the Previous General Partner pursuant to Section 15.1.B 8.6B hereof, the Tendering Party shall have no rights as a stockholder shareholder of the Previous General Partner with respect to the REIT Shares issuable in connection with such acquisition. For purposes of determining compliance with the restrictions set forth in this Section 8.6F, all Partnership Common Units beneficially owned by a Related Party of a Tendering Party shall be considered to be owned or held by such Tendering Party. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner8.6, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereofRedemption, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(18.6G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereofRedemption, neither the Tendering Party nor, to the best of its knowledge, nor any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Aimco Properties L.P.)

Redemption Rights of Qualifying Parties. A. After the Twelve-Month Period applicable Redemption Hold Periodto such Partnership Common Units, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Twelve-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); providedprovided that, howeverunless waived by the Special Limited Partner, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) until and unless the date the General Partner notifies the Tendering Party that the General Special Limited Partner declines or fails to acquire some or all of the Tendered Units under exercise its purchase rights pursuant to Section 15.1.B hereof following receipt of a Notice of Redemption (a “Declination”) and (ii) until the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, funds on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Special Limited Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for the REIT Shares Amount calculated based on the portion of Tendered Units it elects to acquire in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Special Limited Partner so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Special Limited Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Special Limited Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Special Limited Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner Special Limited Partner, given on or before the close of business on the Cut-Off Date Date, that the General Special Limited Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Special Limited Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Special Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Special Limited Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Special Limited Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Special Limited Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Special Limited Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A Sections 15.1.A, 15.1.B and 15.1.B 15.1.H hereof, (i) no Person shall be entitled to effect a Redemption for cash or an exchange for REIT Shares to the Tendering Parties extent the ownership or right to acquire REIT Shares pursuant to such exchange on the Specified Redemption Date could cause such Person (or any other Person) to violate the restrictions on ownership and transfer of REIT Shares set forth in the Charter, after giving effect to any waivers or modifications of such restrictions by the Board of Directors, and (ii) no Person shall have no any rights under this Agreement that to acquire REIT Shares which would otherwise be prohibited under the Charter, after giving effect to any waivers or modifications of such restrictions by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition Board of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership LimitDirectors. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in the Cash Amount otherwise payable upon such Redemption or the REIT Shares otherwise issuable by the General Special Limited Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If In the General event of a Declination: (1) The Special Limited Partner does not elect shall give notice of such Declination to the Tendering Party on or before the close of business on the Cut-Off Date. The failure of the Special Limited Partner to give notice of such Declination by the close of business on the Cut-Off Date shall be deemed to be an election by the Special Limited Partner to acquire the Tendered Units pursuant to Section 15.1.B hereof:in exchange for REIT Shares. (12) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Special Limited Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Special Limited Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (23) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B hereof or Section 15.1.H hereof, if the General Partner shall not, under any circumstances, elect to acquire any Special Limited Partner’s acquisition of Tendered Units in exchange for the REIT Shares if such acquisition Amount would be prohibited under the Charter, then (i) the Special Limited Partner shall not elect to acquire such Tendered Units, and (ii) the Partnership shall not be obligated to effect a Redemption of such Tendered Units. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by Without the consent of the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership LimitPartner, no Tendering Party may effect a Redemption for less than one two thousand (1,0002,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) holds less than one two thousand (1,0002,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (32) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution payable to Holders of Partnership Common Units, and before the record date established by the General Special Limited Partner for a distribution dividend to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Special Limited Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, then such Tendering Party shall pay to the General Special Limited Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units. (43) The consummation of such Redemption (or an acquisition of Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (54) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until the Specified Redemption Date and until such Partnership Common Tendered Units are either paid for by the Partnership pursuant to to Section 15.1.A 15.1. A hereof or transferred to the General Special Limited Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. 15.1.B. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Special Limited Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to unless waived by the General Special Limited Partner, the Tendering Party shall submit the following to the General Special Limited Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge such Tendering Party’s knowledge, any Related Party Party, and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor nor, to the best of their knowledge such Tendering Party’s knowledge, any Related Party Party, will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor nor, to the best of its knowledge such Tendering Party’s knowledge, any Related Party Party, has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and and, to the best of its knowledge such Tendering Party’s knowledge, any Related Party Party, remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) 15.1G(1), or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its such Tendering Party’s knowledge, any other Person Related Party, shall own REIT Shares in violation of the Ownership Limit; and. (4) In connection with any Special Redemption, the General Special Limited Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Partnership, the General Partner or the General Special Limited Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party Redemption or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Agreement of Limited Partnership (CyrusOne Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold PeriodSubject to Section 11.6.D, a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem (a “Redemption”) all or a portion of the Partnership Common Units held by such Tendering Qualifying Party (such Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the such Qualifying Party when exercising the Redemption right (the “Tendering Party”)) when exercising the Redemption right. The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of until and unless there has been a Notice of Redemption Declination and (ii) before the Business Day following the Cut-Off Date. Regardless of the binding or non-binding nature of a pending Redemption, a Tendering Party shall have no right to receive distributions with respect to any Tendered Units (other than the Cash Amount) paid after delivery of the Notice of Redemption, whether or not the Partnership Record Date for such distribution precedes or coincides with such delivery of the Notice of Redemption; provided, however, that in the event that the General Partner on behalf of the Partnership elects to fund the Cash Amount with the proceeds of an Offering Funding pursuant to Section 8.6.D hereof, the Tendering Party’s right to receive distributions shall not be suspended as hereinbefore provided and such Tendering Party shall have the right to receive distributions actually made hereunder prior to the date of the closing of the Offering Funding the proceeds of which are used to pay the Cash Amount. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A 8.6.A hereof, on or before the close of business on the Cut-Off Date, the General Partner a REIT Party may, in the General Partner’s its sole and absolute discretion but subject to the Ownership LimitLimit and the transfer restrictions and other limitations of the Charter, elect to acquire acquire, some or all of the Tendered Units from the Tendering Party (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares AmountConsideration. In making such election, the REIT Party shall act in a fair, equitable and reasonable manner that neither prefers one group or class of Qualifying Parties over another nor discriminates against a group or class of Qualifying Parties. If the General Partner REIT Party so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number the Applicable Percentage of the Tendered Units to the General Partner REIT Party in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issuedConsideration. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner Parent REIT may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, view of the REIT Party to effect compliance with the Securities Act. In the event of a purchase of the any Tendered Units by the General Partner REIT Party pursuant to this Section 15.1.B8.6.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner REIT Party given on or before the close of business on the Cut-Off Date Date, that the General Partner REIT Party has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B8.6.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice by the REIT Party relates shall not accrue or arise. A number of The REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, Consideration shall be delivered by the General Partner REIT Party as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Bylaws of the Parent REIT, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner REIT Party pursuant to this Section 15.1.B8.6.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner Parent REIT to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B8.6.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner Parent REIT and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner Parent REIT pursuant to this Section 15.1.B 8.6.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner Parent REIT in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A 8.6.A and 15.1.B 8.6.B hereof, the no Tendering Parties Party shall have no any rights (including any right to a Redemption pursuant to Section 8.6A) under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights with respect to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner REIT Party pursuant to Section 15.1.B 8.6.B hereof would be in violation of this Section 15.1.C8.6.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner Parent REIT under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A 8.6.B hereof. D. If To the General Partner does not elect extent that the REIT Party declines or fails to acquire the exercise its purchase rights for all Tendered Units pursuant to Section 15.1.B hereof:8.6.B hereof following receipt of a Notice of Redemption (a “Declination”): (1) The General Partner shall give notice of such Declination to the Tendering Party on or before the close of business on the Cut-Off Date. The failure of the General Partner to give notice of such Declination by the close of business on the Cut-Off Date shall itself constitute a Declination. (2) Subject to Section 11.6.D, the Parent REIT on behalf of the Partnership may elect to raise funds for the payment of all or any percentage of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership contribution by a REIT Party of funds from the proceeds of a private placement or registered public offering (each, an “Offering Funding”) by the General Partner Parent REIT of a number of REIT Shares sufficient to purchase or other securities of the Tendered Units Parent REIT (“Offering Funding Shares”) or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. (3) If an Offering Funding has been elected by the General Partner, promptly upon the General Partner’s receipt of the Notice of Redemption and the General Partner giving notice of its Declination, the General Partner shall give notice (a “Single Funding Notice”) to all Qualifying Parties then holding a Partnership Interest (or an interest therein) and having Redemption rights pursuant to this Section 8.6 and require that all such Qualifying Parties elect whether or not to effect a Redemption of their Partnership Common Units to be funded through an Offering Funding. In the event that any such Qualifying Party elects to effect such a Redemption, it shall give notice thereof and of the number of Partnership Common Units to be made subject thereto in writing to the General Partner within ten (10) Business Days after receipt of the Single Funding Notice, and such Qualifying Party shall be treated as a Tendering Party for all purposes of this Section 8.6. In the event that a Qualifying Party does not so elect, it shall be deemed to have waived its right to effect a Redemption; provided, however, that the General Partner shall not be required to acquire Partnership Common Units pursuant to this Section 8.6.D more than twice within a calendar year from a particular Qualifying Party. Any proceeds from an Offering Funding that are in excess of the aggregate Cash Amount paid to all Tendering Parties pursuant to this Section 8.6.D shall be for the sole benefit of the Parent REIT. The General Partner Parent REIT shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B 8.6.B hereof, the General Partner REIT Party shall not, under any circumstances, elect to acquire any Tendered Units in exchange for the REIT Shares Consideration if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 8.6.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner a REIT Party pursuant to Section 15.1.B 8.6.B hereof) pursuant to this Section 15.18.6: (1) All Partnership Common Units acquired by the General Partner a REIT Party pursuant to Section 15.1.B 8.6.B hereof shall automaticallymay, and without further action requiredat the election of the REIT Party, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand five hundred (1,000500) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand five hundred (1,000500) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Each Tendering Party surrenders (a) may effect a Redemption only once in each fiscal quarter of a twelve-month period, unless otherwise permitted by the General Partner, in its Tendered Units sole and absolute discretion and (b) may not effect a Redemption during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner Parent REIT for a distribution to its stockholders shareholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) Notwithstanding anything herein to the contrary, with respect to any Redemption or acquisition of Tendered Units by a REIT Party pursuant to Section 8.6.B hereof, in the event that the General Partner gives notice to all Limited Partners (but excluding any Assignees) then owning Partnership Interests (a “Primary Offering Notice”) that the Parent REIT desires to effect a primary offering of its equity securities, then, unless the General Partner otherwise consents, commencement of the actions denoted in Section 8.6.D hereof as to an Offering Funding, if any, with respect to any Notice of Redemption thereafter received, whether or not the Tendering Party is a Limited Partner, may be delayed until the earlier of (a) the completion of the primary offering or (b) ninety (90) days following the giving of the Primary Offering Notice. (5) Without the consent of the General Partner, no Tendering Party may effect a Redemption within ninety (90) days following the closing of any prior Offering Funding. (6) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner a REIT Party pursuant to Section 15.1.B 8.6.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the XxxxHxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (57) The Subject to Section 8.6.A, the Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions provision of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A 8.6.A hereof or transferred to the General Partner a REIT Party and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner a REIT Party pursuant to Section 15.1.B 8.6.B hereof, the Tendering Party shall have no rights as a stockholder shareholder of the General Partner Parent REIT with respect to the REIT Shares issuable in connection with such acquisition. (8) Each Limited Partner covenants and agrees with the REIT Party that all Tendered Units shall be delivered to the appropriate REIT Party free and clear of all liens, claims and encumbrances whatsoever and should any such liens, claims and/or encumbrances exist or arise with respect to such Tendered Units, the REIT Party shall be under no obligation to acquire the same. Each Limited Partner further agrees that, in the event any state or local property transfer tax is payable as a result of the transfer of its Tendered Units to a REIT Party (or its designee), such Limited Partner shall assume and pay such transfer tax. (9) No Limited Partner may require a Redemption hereunder to the extent that the issuance of REIT Consideration pursuant to Section 8.6.B hereof would violate ownership limitations contained in the Charter or would violate any REIT Requirement (notwithstanding that any such Tendered Units could otherwise be acquired for cash pursuant to Section 8.6.A hereof). (10) No Tendering Party may require a Redemption hereunder if the issuance of REIT Consideration would be likely to cause the acquisition of such REIT Consideration by such Tendering Party to be “integrated” with any other distribution of common stock of the Parent REIT or of Limited Partnership Interests for purposes of complying with the Securities Act. For purposes of determining compliance with the restrictions set forth in this Section 8.6.F, all Partnership Common Units beneficially owned by a Related Party of a Tendering Party shall be considered to be owned or held by such Tendering Party. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner8.6, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner a REIT Party pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Partner a REIT Party pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(18.6.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Partner a REIT Party pursuant to Section 15.1.B 8.6.B hereof, neither the Tendering Party nor, to the best of its knowledge, nor any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Arbor Realty Trust Inc)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Period, a (a) A Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem exchange all or a portion of the Partnership Company Class B Common Units held by such Tendering Qualifying Party (Partnership Company Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Class A Common Stock Amount or, at the sole and absolute election of the Managing Member, on behalf of the Company, for the Cash Amount payable on the Specified Redemption Date. The Partnership mayDate (in each case, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, howeverin each case pursuant to, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemptionand in accordance with, the issuance Certificate of Incorporation and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B provisions of this AgreementArticle XIV. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner Managing Member by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against In the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party event that the General Partner declines Managing Member elects to acquire some cause the Company to redeem all or all a portion of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) in exchange for the Business Day following the Cut-Off Date. In the event of a Redemptionapplicable Cash Amount, the such applicable Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General PartnerManaging Member’s sole and absolute discretion, in immediately available funds, in each case, by wire transfer of funds on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to . To the extent required for determined by the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off DateManaging Member, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) Company will treat a redemption of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close Article XIV (including any redemption for a Cash Amount) as a disguised sale of business on the Cut-Off Date. membership interests under Code section 707(a)(2)(B). (b) If the General Partner elects to acquire any Managing Member, on behalf of the Tendered Units for REIT SharesCompany, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may does not elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or redeem all of the Tendered Units pursuant to this Section 15.1.Bfrom the Tendering Party in exchange for the Cash Amount, then the obligation of the Partnership to effect a Redemption portion of the Tendered Units not being redeemed for the Cash Amount shall be redeemed for the Class A Common Stock Amount calculated based on the portion of Tendered Units to be acquired in exchange for Class A Common Stock (such percentage being referred to as the “Applicable Percentage”). The Tendering Party shall submit such written representations, investment letters, legal opinions or other instruments as the Managing Member in good faith determines to which be necessary, to effect compliance with the General Partner’s notice relates shall not accrue or ariseSecurities Act. A number of REIT Shares shares of Class A Common Stock equal to the product of the Applicable Percentage and the REIT Shares Class A Common Stock Amount, if applicable, shall be delivered by the General Partner Managing Member as duly authorized, validly issued, fully paid and non-assessable REIT Shares shares of Class A Common Stock and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than restrictions provided in the Ownership LimitCertificate of Incorporation, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares shares of Class A Common Stock and Rights for all purposes, including, without limitation, including rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares of Class A Common Stock issued upon an acquisition of the Tendered Units by the General Partner in connection with a Redemption pursuant to this Section 15.1.B 14.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner Managing Member in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1c) The Partnership Company may elect to raise funds for the payment of the any applicable Cash Amount either (ai) solely by requiring that the General Partner Managing Member or its Subsidiaries contribute to the Partnership Company funds from (A) the proceeds of a registered public offering by the General Partner Managing Member of REIT Shares shares of Class A Common Stock sufficient to purchase the Tendered Units or (bB) any other sources available to the Managing Member or its Subsidiaries or (ii) with the consent of the Tendering Party, from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the PartnershipCompany. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base applicable federal short-term rate on corporate loans at large United States money center commercial banks, as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. (d) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof)contrary, with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.114.1: (1i) All Partnership Common Units acquired by Without the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised consent of the same number of Partnership Common Units. (2) Subject to the Ownership LimitManaging Member, no Tendering Party may effect a Redemption for less fewer than one thousand [_____(1,000) Partnership ____)] Company Class B Common Units (as adjusted for any unit split, unit distribution, reverse unit split, reclassification or similar event, in each case with such adjustment being determined by the Managing Member) or, if such Tendering Party owns holds fewer than [_____(____)] Company Class B Common Units (as a Limited Partner oradjusted for any unit split, economicallyunit distribution, as an Assignee) less than one thousand (1,000) Partnership Common Unitsreverse unit split, reclassification or similar event, in each case with such adjustment being determined by the Managing Member), all of the Partnership Company Class B Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3ii) If (iA) a Tendering Party surrenders its Tendered Units during the period after the Partnership Company Record Date with respect to a distribution payable to Holders of Company Common Units, and before the record date established by the General Partner Managing Member for a distribution dividend to its stockholders of some or all of its portion of such Partnership Company distribution, and (iiB) the General Partner Managing Member elects to acquire redeem any of such Tendered Units in exchange for REIT Shares Class A Common Stock pursuant to Section 15.1.B14.1(b), then such Tendering Party shall pay to the General Partner Managing Member on the Specified Redemption Date an amount in cash equal to the portion of the Partnership Company distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units. (4iii) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (5iv) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof10.4) all Partnership Company Common Units subject to any Redemption, and be treated as a Limited Partner Member or an Assignee, as applicable, with respect to such Partnership Company Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption DateDate and until such Tendered Units are redeemed. Until a Specified Redemption Date and an acquisition a redemption of the Tendered Units by the General Partner pursuant to Section 15.1.B hereofManaging Member for the Class A Common Stock Amount, the Tendering Party shall have no rights as a stockholder of the General Partner Managing Member with respect to the REIT Shares shares of Class A Common Stock issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4e) In connection with any Special Redemption, the General Partner Managing Member shall have the right to receive an opinion of counsel for the Tendering Party reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Company or the General Partner Managing Member to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party Redemption or the issuance and sale of REIT Shares Class A Common Stock to the Tendering Party pursuant to Section 15.1.B 14.1(b) of this Agreement. H. Holders of LTIP Units shall not be entitled (f) Notwithstanding anything herein to the right contrary, a Qualifying Party may withdraw or amend a Notice of Redemption, in whole or in part, before the effectiveness of the Redemption, at any time before 5:00 p.m. New York City time, on the Business Day immediately preceding the Specified Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units Date (or any other class or series such later time as may be required by applicable law) by delivery of Partnership a written notice of withdrawal to the Managing Member and the Company, specifying (i) the number of withdrawn Company Class B Common Units, (ii) if any, the number of Company Class B Common Units entitled as to such right which the Notice of Redemption remains in effect and (iii) if the Qualifying Party so determines, a new Specified Redemption Date or any other new or revised information permitted in the Notice of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Wayne Farms, Inc.)

Redemption Rights of Qualifying Parties. A. After From and after the applicable Redemption Hold PeriodLock-Out Date, subject to Section 11.6.D, a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem (a “Redemption”) all or a portion of the Partnership Common Units held by such Tendering Qualifying Party (such Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the such Qualifying Party when exercising the Redemption right (the “Tendering Party”)) when exercising the Redemption right. The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) before the Business Day following the Cut-Off Date. Regardless of the binding or non-binding nature of a pending Redemption, a Tendering Party shall have no right to receive distributions with respect to any Tendered Units (other than the Cash Amount) paid after delivery of the Notice of Redemption, whether or not the Partnership Record Date for such distribution precedes or coincides with such delivery of the Notice of Redemption. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A 8.6.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership LimitLimit and the transfer restrictions and other limitations of the Articles of Incorporation, elect to acquire some or all acquire, up to 100% of the Tendered Units from the Tendering Party (such the percentage elected to be acquired by the General Partner being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for the REIT SharesConsideration. If It shall be a condition to the General Partner elects Partner’s ability to acquire some or all deliver the REIT Consideration that any such consideration shall consist of the Tendered Units pursuant to this Section 15.1.Bshares of Common Stock which shall, upon issuance, be duly authorized, validly issued, fully paid and nonassessable. In making such election, the General Partner shall give written notice thereof to the Tendering Party on act in a fair, equitable and reasonable manner that neither prefers one group or before the close class of business on the Cut-Off Date. If the General Partner elects to acquire any Qualifying Parties over another nor discriminates against a group or class of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares AmountQualifying Parties. If the General Partner so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number the Applicable Percentage of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issuedConsideration. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to and any other restrictions and limitations imposed by the Articles of Incorporation on such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, necessary in the view of the General Partner’s view, Partner to effect compliance with the Securities Act. In the event of a purchase of the any Tendered Units by the General Partner pursuant to this Section 15.1.B8.6.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date Date, that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B8.6.B, the Partnership shall have no obligation of the Partnership to effect a Redemption of the Tendered Units as to which the notice by the General Partner’s notice relates shall not accrue or arisePartner relates. A number of The REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, Consideration shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Common Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Articles of Incorporation, the Bylaws of the General Partner, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B8.6.B, any Partner, any Assignee Partner nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Common Shares owned or held by such Person, whether or not such REIT Common Shares are issued pursuant to this Section 15.1.B8.6.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Common Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Common Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B 8.6.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A Sections 8.6.A and 15.1.B 8.6.B hereof, the no Tendering Parties Party shall have no any rights (including any right to a Redemption pursuant to Section 8.6A) under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights Articles of Incorporation with respect to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof would be in violation of this Section 15.1.C8.6.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Common Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A 8.6.B hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate).[intentionally omitted] E. Notwithstanding the provisions of Section 15.1.B 8.6.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for the REIT Shares Consideration if such acquisition exchange would be prohibited under the CharterArticles of Incorporation. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 8.6.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B 8.6.B hereof) pursuant to this Section 15.18.6: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B 8.6.B hereof shall automaticallymay, and without further action requiredat the election of the General Partner, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand five hundred (1,000500) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand five hundred (1,000500) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Each Tendering Party surrenders (a) may effect a Redemption only once in each fiscal quarter of a twelve-month period, unless otherwise permitted by the General Partner, in its Tendered Units sole and absolute discretion and (b) may not effect a Redemption during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders shareholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (5) The Subject to Section 8.6.A, the Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an AssigneePartner, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A 8.6.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Common Shares, pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, the Tendering Party shall have no rights as a stockholder shareholder of the General Partner with respect to the REIT Common Shares issuable in connection with such acquisition. (6) Each Limited Partner covenants and agrees with the General Partner that all Tendered Units shall be delivered to the General Partner free and clear of all liens, claims and encumbrances whatsoever and should any such liens, claims and/or encumbrances exist or arise with respect to such Tendered Units, the General Partner shall be under no obligation to acquire the same. Each Limited Partner further agrees that, in the event any state or local property transfer tax is payable as a result of the transfer of its Tendered Units to the General Partner (or its designee), such Limited Partner shall assume and pay such transfer tax. (7) No Limited Partner may require a Redemption hereunder to the extent that the issuance of REIT Consideration pursuant to Section 8.6.B hereof would violate ownership limitations contained in the Articles of Incorporation or would violate any REIT Requirement (notwithstanding that any such Tendered Units could otherwise be acquired for cash pursuant to Section 8.6.A hereof). For purposes of determining compliance with the restrictions set forth in this Section 8.6.F, all Partnership Common Units beneficially owned by a Related Party of a Tendering Party shall be considered to be owned or held by such Tendering Party. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner8.6, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Common Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Common Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Common Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General a REIT Partner pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Common Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(18.6.G (1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, neither the Tendering Party nor, to the best of its knowledge, nor any other Person Related Party shall own REIT Common Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Newkirk Realty Trust, Inc.)

Redemption Rights of Qualifying Parties. A. After the expiration of the applicable Redemption Hold Initial Holding Period, a Qualifying Common Party shall have the right (subject to the terms and conditions set forth herein) (the “Common Redemption Right”) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such a Common Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Common Units”) in exchange (a “Common Redemption”) for the Common Unit Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Common Units at the request of the Holder thereof Qualifying Common Party prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Common Redemption shall be exercised pursuant to a Common Unit Notice of Redemption delivered to the General Partner by the Qualifying Common Party when exercising the Redemption right (the “Common Tendering Party”). The Partnership’s obligation to effect a Common Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Common Tendering Party that the General Partner it declines to acquire some or all of the Tendered Common Units under Section 15.1.B hereof following receipt of a Common Unit Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Common Redemption, the Common Unit Cash Amount shall be delivered as a certified or bank check payable to the Common Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that tenth (10th) Business Day following the date on which the General Partner may elect to cause receives a Common Unit Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountCommon Tendering Party. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Common Units from the Common Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Common Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Common Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Common Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Common Tendering Party’s exercise of its Common Redemption right Right with respect to such Tendered Common Units and (2) such transaction shall be treated, for federal Federal income tax purposes, as a transfer by the Common Tendering Party of such Tendered Common Units to the General Partner in exchange for the Common Unit REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Common Tendering Party shall sell such number of the Tendered Common Units to the General Partner in exchange for a number of REIT Shares equal to the product of the Common Unit REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Common Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, representations and investment letters, legal opinions or other instruments letters as reasonably necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Common Units by the General Partner pursuant to this Section 15.1.B, the Common Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Common Units and, upon notice to the Common Tendering Party by the General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the General Partner has elected to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Common Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Common Unit REIT Shares Amount and the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and, to the extent applicable, the Securities Act and relevant state securities or “blue sky” laws. Neither any Common Tendering Party whose Tendered Common Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Common Tendering Party shall be deemed the owner of such REIT Shares and such Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise all rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Common Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Common Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Common Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Common Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Asset Purchase Agreement (Hudson Pacific Properties, Inc.)

Redemption Rights of Qualifying Parties. A. After the [Subject to any applicable Redemption Hold Period, a Restricted Period,][A] [a] Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. [The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Restricted Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. .] Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner and the Special Limited Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner Partner, on behalf of the Partnership, notifies the Tendering Party that the General Partnership has declined to elect to require the Special Limited Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that tenth (10th) Business Day following the date on which the General Partner may elect to cause receives a Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountTendering Party. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner Partnership may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to require the Special Limited Partner to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partnership elects to require the Special Limited Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner Partnership shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partnership elects to require the Special Limited Partner elects to acquire any of the Tendered Units for REIT Shares, the General Special Limited Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Special Limited Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for U.S. federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Special Limited Partner in exchange for the REIT Shares Amount. If the General Partner Partnership so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Special Limited Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Special Limited Partner may reasonably require in connection with the application of the REIT Share Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Special Limited Partner’s view, to effect compliance with the Securities Act. In the event of a an election by the Partnership to require the Special Limited Partner to purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner Partnership given on or before the close of business on the Cut-Off Date that the General Partner Partnership has elected to require the Special Limited Partner to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Special Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the REIT Share Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Special Limited Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Special Limited Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Special Limited Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued delivered upon an acquisition of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Special Limited Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Special Limited Partner Charter and shall have no rights to require the Partnership to redeem Common Tendered Units or require the Special Limited Partner to acquire Tendered Units if such a redemption or the acquisition of such Common Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the REIT Share Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, to the fullest extent permitted by law, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable deliverable by the General Special Limited Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner Partnership does not elect to require the Special Limited Partner to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may may, in the sole and absolute discretion of the General Partner, elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Special Limited Partner contribute to the Partnership funds from the proceeds of a sale (including by way of a registered public offering offering) by the General Special Limited Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Special Limited Partner shall make a Capital Contribution of any such amounts to the Partnership in exchange for an additional General Partnership Units, and the Partnership is hereby authorized from time to time to issue such additional Partnership Units in consideration therefor without any further act, approval or vote of any Partner Interestor other Persons. Any such contribution shall entitle the General Special Limited Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Special Limited Partner shall not, under any circumstances, elect to not acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the CharterSpecial Limited Partner Charter or result in any violation of the REIT Share Ownership Limit. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Special Limited Partner’s Partnership Interest comprised of the same number of Partnership Common Units. (2) Subject to the REIT Share Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner, which may be given or withheld in its sole and absolute discretion. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Special Limited Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partnership elects to require the Special Limited Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Special Limited Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Special Limited Partner and paid for, by the issuance delivery of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Special Limited Partner with respect to the REIT Shares issuable deliverable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, in its sole and absolute discretion, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the REIT Share Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its their knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, nor to the best of its knowledge, their knowledge any other Person Related Party shall own REIT Shares in violation of the REIT Share Ownership Limit; and (4) In connection with any Special Redemption, the General Special Limited Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Partnership, the General Partner or the General Special Limited Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to the Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Invitation Homes Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Periodfirst Twelve-Month Period (or such shorter or longer period as may be provided in a particular Partner Schedule), a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (such Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”called "TENDERED UNITS") in exchange (a “Redemption”"REDEMPTION") for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”"TENDERING PARTY"). The Partnership’s 's obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of until and unless there has been a Notice of Redemption Declination and (ii) before the first Business Day following the Cut-Off Date. Regardless of the binding or non-binding nature of a pending Redemption, a Tendering Party shall have no right to receive distributions with respect to any Tendered Units (other than the Cash Amount) paid after delivery of the Notice of Redemption, whether or not the Partnership Record Date for such distribution precedes or coincides with such delivery of the Notice of Redemption. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s 's sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Excel Realty Trust Inc)

Redemption Rights of Qualifying Parties. A. After the expiration of the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right from time to time (subject to the terms and conditions set forth herein) (the “Redemption Right”) to require the Partnership to redeem all or a portion of the Common Units held by a Qualifying Party (Common Units tendered for Redemption, “Tendered Common 75 Units”) in exchange for cash from the Partnership as described in this Section 15.1 (a “Redemption”), subject to the right of the REIT Limited Partner to acquire some or all of the Tendered Common Units under Section 15.1.C pursuant to an Election Notice. A Qualifying Party may exercise the Redemption Right (a “Tendering Party”) by delivering to the General Partner a Common Unit Notice of Redemption; provided, however, without the written consent of the General Partner, no Common Unit Notice of Redemption may seek the Redemption of less than one thousand (1,000) Common Units (or, if a Tendering Party holds (as a Common Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Common Units, all of the Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption DateParty). The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Common Units at the request of the Holder thereof Qualifying Party prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth hereinherein (including the expiration of the applicable Specified Redemption Date)) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.E(4) of this Agreement. Any Redemption shall be exercised pursuant to Notwithstanding the receipt of a Common Unit Notice of Redemption delivered to Redemption, the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, Redemption shall not arise or be binding against the Partnership until the earlier of (ia) the date the General REIT Limited Partner notifies the Tendering Party that the General Partner it declines to acquire some or all of the Tendered Common Units under Section 15.1.B 15.1.C hereof following receipt of a Notice of Redemption and (iib) the Business Day following the Cut-Off Date. . B. In the event of the REIT Limited Partner fails to timely deliver an Election Notice or the Applicable Percentage is less than 100% with respect to a Redemption, the Cash Amount Partnership shall be delivered as a certified or bank check payable pay to the Tendering Party on or before the Specified Redemption Date an amount in cash (or, in the General REIT Limited Partner’s sole and absolute discretion, in immediately available funds) equal to the product of (i) 100% minus the Applicable Percentage, in each case, on or before multiplied by (ii) the Specified Redemption DateCash Amount; provided, however, that the General Partner Partner, upon written notice to the Tendering Party, may elect to cause delay the Specified Redemption Date to be delayed for up to an additional 60 90 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General event the Partnership has a bona fide intention to generate all or part of such cash (a) by the REIT Limited Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all issuance of NAV REIT Common Shares (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote CMCT in exchange for the proceeds of an offering of securities of CMCT) and contribution of all or consent, receive dividends, and exercise rights, as a portion of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute proceeds therefrom to the Partnership funds from the proceeds of a registered public offering by the General in exchange for additional REIT Limited Partner of REIT Shares sufficient to purchase the Tendered Units or Interests, (b) from by incurring additional Debt and/or (c) by selling any other sources (including, but not limited Property. In no event shall any interest be due or payable with respect to, the sale of or otherwise accrue on, any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, amount payable under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.15.1.B.

Appears in 1 contract

Samples: Limited Partnership Agreement (Creative Media & Community Trust Corp)

Redemption Rights of Qualifying Parties. A. (a) After the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) (the “Redemption Right”) to require the Partnership to redeem all or a portion of the Partnership Common applicable OP Units held by such Tendering Party (Partnership Common OP Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder holder thereof prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right Right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to require the Initial Limited Partner to acquire some or all of the Tendered Units under Section 15.1.B 15.1(b) hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. (b) Notwithstanding the provisions of Section 15.1.A 15.1(a) hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to require the Initial Limited Partner to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Sharesshares of Common Stock or the Cash Amount payable on the Specified Redemption Date. If the General Partner elects to require the Initial Limited Partner to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to require the Initial Limited Partner to acquire any of the Tendered Units for REIT Sharesshares of Common Stock, the General Initial Limited Partner shall issue and deliver such REIT Shares Common Stock to the Tendering Party pursuant to the terms of this Section 15.1.B15.1(b), in which case (1) the General Initial Limited Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right Right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Initial Limited Partner in exchange for the REIT Shares Common Stock Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Initial Limited Partner in exchange for a number of REIT Shares shares of Common Stock equal to the product of the REIT Shares Common Stock Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Initial Limited Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Initial Limited Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Initial Limited Partner pursuant to this Section 15.1.B15.1(b), the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to require the Initial Limited Partner to acquire some or all of the Tendered Units pursuant to this Section 15.1.B15.1(b), the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares shares of Common Stock equal to the product of the Applicable Percentage and the REIT Shares Common Stock Amount, if applicable, shall be delivered by the General Initial Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares shares of Common Stock and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Initial Limited Partner pursuant to this Section 15.1.B15.1(b), any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Initial Limited Partner to register, qualify or list any REIT Shares Common Stock owned or held by such Person, whether or not such REIT Shares shares of Common Stock are issued pursuant to this Section 15.1.B15.1(b), with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Initial Limited Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner Shares of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares Common Stock issued upon an acquisition of the Tendered Units by the General Initial Limited Partner pursuant to this Section 15.1.B 15.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. (c) Notwithstanding the provisions of Section 15.1.A 15.1(a) and 15.1.B 15.1(b) hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter Articles of Incorporation and shall have no rights to require the Partnership to redeem Common OP Units if the acquisition of such Common OP Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof would be in violation of this Section 15.1.C15.1(c), it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares the shares of Common Stock otherwise issuable by the General Initial Limited Partner under Section 15.1.B 15.1(b) hereof or cash otherwise payable under Section 15.1.A 15.1(a) hereof. D. (d) If the General Partner does not elect to require the Initial Limited Partner to acquire the Tendered Units pursuant to Section 15.1.B 15.1(b) hereof: (1i) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Initial Limited Partner contribute to the Partnership funds from the proceeds of a registered public offering Offering by the General Initial Limited Partner of REIT Shares shares of Common Stock sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Initial Limited Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner InterestPartnership Interest consistent with the provisions of Article 4. Any such contribution shall entitle the General Initial Limited Partner to an equitable Percentage Interest adjustment. (2ii) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. (e) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 15.1(c) hereof), with respect to any Redemption (or any tender of Partnership Common OP Units for Redemption if the Tendered Units are acquired by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof) pursuant to this Section 15.1: (1i) All Partnership Common OP Units acquired by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof shall automatically, and without further action required, be converted into and deemed to be a General an Initial Limited Partner Partnership Interest comprised of the same number of Partnership Common OP Units. (2ii) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common OP Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common OP Units, all of the Partnership Common OP Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3iii) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Initial Limited Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to require the Initial Limited Partner to acquire any of such Tendered Units in exchange for REIT Shares shares of Common Stock pursuant to Section 15.1.B15.1(b), such Tendering Party shall pay to the General Initial Limited Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Sharesshares of Common Stock, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Sharesshares of Common Stock. (4iv) The consummation of such Redemption (or an acquisition of Tendered Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the XxxxHxxx-Xxxxx-Xxxxxx Act. (5v) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common OP Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common OP Units for all purposes of this Agreement, until such Partnership Common OP Units are either paid for by the Partnership pursuant to Section 15.1.A 15.1(a) hereof or transferred to the General Initial Limited Partner and paid for, by the issuance of the REIT SharesCommon Stock, pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof, the Tendering Party shall have no rights as a stockholder of the General Initial Limited Partner with respect to the REIT Shares shares of Common Stock issuable in connection with such acquisition. G. (f) In connection with an exercise of Redemption rights Rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1i) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares shares of Common Stock by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares shares of Common Stock in violation of the Ownership Limit; (2ii) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares shares of Common Stock prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date; (3iii) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares shares of Common Stock by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(115.1(f)(i) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Initial Limited Partner pursuant to Section 15.1.B 15.1(b) hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares shares of Common Stock in violation of the Ownership Limit; and (4iv) In connection with any Special Redemption, the General Initial Limited Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Partnership, the General Partner or the General Initial Limited Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares of Common Stock to the Tendering Party pursuant to Section 15.1.B 15.1(b) of this Agreement. H. Holders (g) The Qualifying Party shall be solely responsible for the payment of LTIP Units shall not be entitled to the right of Redemption provided for any real estate transfer taxes imposed in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or connection with any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Phillips Edison Grocery Center Reit I, Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Twelve-Month Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Twelve-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B 15.1(b) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following close of business on the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified tenth (10th) Business Day following the date on which the General Partner receives a Notice of Redemption Datefrom the Tendering Party; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, as modified to take into account any waivers or modifications of such restrictions by the Board of Directors, elect to cause IMC REIT to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit Limit, as modified to take into account any waivers or modifications of such restrictions by the Board of Directors, to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to or Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereofabove: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of If a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Qualifying Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay has delivered to the General Partner on the Specified a Notice of Redemption Date an amount in cash equal with respect to the portion of the Partnership distribution in respect of the Excess Units (such Excess Units plus any other Tendered Units exchanged for REIT Sharesthat such Qualifying Party agrees to treat as Excess Units, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4“Offering Units”) The consummation of such Redemption (or an acquisition of Tendered Units by and the General Partner pursuant is eligible to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, file a registration statement under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units Form S-3 (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.successor form similar thereto), then:

Appears in 1 contract

Samples: Limited Partnership Agreement (International Market Centers, Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Twelve-Month Period, a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (such Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “"Tendered Units") in exchange (a "Redemption") for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the "Tendering Party"). The Partnership’s 's obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of until and unless there has been a Notice of Redemption Declination and (ii) before the Business Day following the Cut-Off Date. Regardless of the binding or non- binding nature of a pending Redemption, a Tendering Party shall have no right to receive distributions with respect to any Tendered Units (other than the Cash Amount) paid after delivery of the Notice of Redemption, whether or not the Partnership Record Date for such distribution precedes or coincides with such delivery of the Notice of Redemption; provided, however, that in the event that the General Partner on behalf of the Partnership elects to fund the Cash Amount with the proceeds of an Offering Funding pursuant to Section 8.6.D hereof, the Tendering Party's right to receive distributions shall not be suspended as hereinbefore provided and such Tendering Party shall have the right to receive distributions actually made hereunder prior to the date of the closing of the Offering Funding whose proceeds are used to pay the Cash Amount. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s 's sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A 8.6.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership LimitLimit and the transfer restrictions and other limitations of the Charter, elect to acquire some or all (such percentage being referred to as the "Applicable Percentage") of the Tendered Units from the Tendering Party in exchange for the REIT Shares Amount calculated based on the portion of Tendered Units it elects to acquire in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.BIn making such election, the General Partner shall give written notice thereof to the Tendering Party on act in a fair, equitable and reasonable manner that neither prefers one group or before the close class of business on the Cut-Off Date. If the General Partner elects to acquire any Qualifying Parties over another nor discriminates against a group or class of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares AmountQualifying Parties. If the General Partner so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s 's view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B8.6.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B8.6.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s 's notice relates shall not accrue or arise. A number of REIT Shares equal to the The product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable accessible REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Bylaws of the General Partner, the Securities Act and relevant state securities or "blue sky" laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B8.6.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B8.6.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General 42 Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B 8.6.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. The Special Limited Partner will be granted registration rights with respect to the REIT Shares Amount, if any, delivered pursuant hereto to the Special Limited Partner in exchange for Tendered Units. C. Notwithstanding the provisions of Section 15.1.A 8.6.A and 15.1.B 8.6.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights with respect to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof would be in violation of this Section 15.1.C8.6.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A 8.6.B hereof. D. If In the event that the General Partner does not elect declines or fails to acquire the Tendered Units exercise its purchase rights pursuant to Section 15.1.B hereof:8.6.B hereof following receipt of a Notice of Redemption (a "Declination"): (1) The General Partner shall give notice of such Declination to the Tendering Party on or before the close of business on the Cut-Off Date. The failure of the General Partner to give notice of such Declination by the close of business on the Cut-Off Date shall itself constitute a Declination. (2) Subject to Section 11.6.D, the General Partner on behalf of the Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that contribution by the General Partner contribute to the Partnership of funds from the proceeds of a private placement or registered public offering (each, an "Offering Funding") by the General Partner of a number of REIT Shares sufficient or other securities of the REIT ("Offering Funding Shares") equal to purchase the REIT Shares Amount with respect to the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. (3) Promptly upon the General Partner's receipt of the Notice of Redemption and the General Partner giving notice of its Declination, the General Partner shall give notice (a "Single Funding Notice") to all Qualifying Parties then holding a Partnership Interest (or an interest therein) and having Redemption rights pursuant to this Section 8.6 and require that all such Qualifying Parties elect whether or not to effect a Redemption of their Partnership Common Units to be funded through an Offering Funding (if an Offering Funding has been elected by the General Partner) or otherwise. In the event that any such Qualifying Party elects to effect such a Redemption, it shall give notice thereof and of the number of Partnership Common Units to be made subject thereto in writing to the General Partner within ten (10) Business Days after receipt of the Single Funding Notice, and such Qualifying Party shall be treated as a Tendering Party for all purposes of this Section 8.6. In the event that a Qualifying Party does not so elect, it shall be deemed to have waived its right to effect a Redemption for the current Twelve-Month Period; provided, however, that the General Partner shall not be required to acquire Partnership Common Units pursuant to this Section 8.6.D more than twice within a calendar year. Any proceeds from an Offering Funding that are in excess of the Cash Amount shall be for the sole benefit of the General Partner. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest and/or Limited Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B 8.6.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for the REIT Shares Amount if such acquisition exchange would be prohibited under the CharterCharter or the REIT provisions of the Code. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 8.6.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B 8.6.B hereof) pursuant to this Section 15.18.6: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B 8.6.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand five hundred (1,000500) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand five hundred (1,000500) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Each Tendering Party surrenders its Tendered Units (a) may effect a Redemption only once in each fiscal quarter of a Twelve-Month Period and (b) may not effect a Redemption during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders shareholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) Notwithstanding anything herein to the contrary, with respect to any Redemption or acquisition of Tendered Units by the General Partner pursuant to Section 8.6.B hereof, in the event that the General Partner gives notice to all Limited Partners (but excluding any Assignees) then owning Partnership Interests (a "Primary Offering Notice") that the General Partner desires to effect a primary offering of its equity securities then, unless the General Partner otherwise consents, commencement of the actions denoted in Section 8.6.D hereof as to an Offering Funding, if any, with respect to any Notice of Redemption thereafter received, whether or not the Tendering Party is a Limited Partner, may be delayed until the earlier of (a) the completion of the primary offering or (b) ninety (90) days following the giving of the Primary Offering Notice. (5) Without the Consent of the General Partner, no Tendering Party may effect a Redemption within ninety (90) days following the closing of any prior Offering Funding. (6) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the XxxxHart-XxxxxScott-Xxxxxx ActRodino Antitrust Improvements Act of 1970, xx xxxxxxx. (57) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions provision of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A 8.6.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, the Tendering Party shall have no rights as a stockholder shareholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. For purposes of determining compliance with the restrictions set forth in this Section 8.6.F, all Partnership Common Units beneficially owned by a Related Party of a Tendering Party shall be considered to be owned or held by such Tendering Party. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner8.6, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(18.6.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, neither the Tendering Party nor, to the best of its knowledge, nor any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Newcastle Investment Corp)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Fourteen-Month Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Fourteen-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that tenth (10th) Business Day following the date on which the General Partner may elect to cause receives a Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountTendering Party. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT SharesShares (the percentage of such Tendered Units to be acquired by the General Partner in exchange for REIT Shares being referred to as the “Applicable Percentage”). If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership LimitCharter. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Merger Agreement (American Assets Trust, Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Fourteen-Month Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as "Tendered Units") in exchange (a "Redemption") for the Cash Amount payable on the Specified Redemption 72 Date. The Partnership may, in the Managing General Partner’s 's sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Fourteen-Month Period (subject to the terms and conditions set forth herein) (a "Special Redemption"); provided, however, that the Managing General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the Managing General Partner and the Special Limited Partner by the Qualifying Party when exercising the Redemption right (the "Tendering Party"). The Partnership’s 's obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the Managing General Partner Partner, on behalf of the Partnership, notifies the Tendering Party that the General Partnership declines to cause the Special Limited to Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the Managing General Partner’s 's sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that tenth (10th) Business Day following the date on which the Managing General Partner may elect to cause receives a Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountTendering Party. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner Partnership may, in the Managing General Partner’s 's sole and absolute discretion but subject to the Ownership LimitLimit and the transfer restrictions and other limitations of the Charter, elect to cause the Special Limited Partner to acquire some or all (such percentage being referred to as the "Applicable Percentage") of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partnership chooses to cause the Special Limited Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the Managing General Partner Partner, on behalf of the Partnership, shall give written notice thereof to the Special Limited Partner and the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partnership elects to cause the Special Limited Partner elects to acquire any of the Tendered Units for REIT Shares, the Managing General Partner, on behalf of the Partnership, shall direct the Special Limited Partner shall to issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Special Limited Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s 's exercise of its Redemption right with respect to such Tendered Units Units, and (2) such transaction shall be treated, for federal Federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Special Limited Partner in exchange for the REIT Shares Amount. If the General Partner Partnership so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Special Limited Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Special Limited Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Special Limited Partner’s 's view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the Managing General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the General Partner Partnership has elected to cause the Special Limited Partner to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the Managing General Partner’s 's notice relates shall not accrue or arise. A number of REIT Shares equal to the The product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Special Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Securities Act and relevant state securities or "blue sky" laws. Neither any Tendering Party whose Tendered Units are acquired by the General Special Limited Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Special Limited Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Special Limited Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Special Limited Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights with respect to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Special Limited Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner Partnership does not elect exercise its right to cause the Special Limited Partner to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Special Limited Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Special Limited Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. Any proceeds from a public offering that are in excess of the Cash Amount shall be for the sole benefit of the Special Limited Partner. The General Special Limited Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Limited Partner Interest. Any such contribution shall entitle the General Special Limited Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner Partnership shall not, under any circumstances, elect to cause the Special Limited Partner to acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Special Limited Partner's Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, withoutunless, in each case, otherwise agreed to by the Consent of the Managing General PartnerPartner in its sole and absolute discretion. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Special Limited Partner for a distribution to its stockholders shareholders of some or all of its portion of such Partnership distribution, and (ii) the General Partnership elects to cause the Special Limited Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the Managing General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Special Limited Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder shareholder of the General Special Limited Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the Managing General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its their knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, nor to the best of its knowledge, their knowledge any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and. (4) In connection with any Special Redemption, the General Special Limited Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Partnership, the Managing General Partner or the General Special Limited Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.. 76

Appears in 1 contract

Samples: Limited Partnership Agreement (Hartman Short Term Income Properties XX, Inc.)

Redemption Rights of Qualifying Parties. A. After the Subject to any applicable Redemption Hold Restricted Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Restricted Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner and the Special Limited Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner Partner, on behalf of the Partnership, notifies the Tendering Party that the General Partnership has declined to elect to require the Special Limited Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that tenth (10th) Business Day following the date on which the General Partner may elect to cause receives a Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountTendering Party. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner Partnership may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to require the Special Limited Partner to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partnership elects to require the Special Limited Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner Partnership shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partnership elects to require the Special Limited Partner elects to acquire any of the Tendered Units for REIT Shares, the General Special Limited Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Special Limited Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for U.S. federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Special Limited Partner in exchange for the REIT Shares Amount. If the General Partner Partnership so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Special Limited Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Special Limited Partner may reasonably require in connection with the application of the REIT Share Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Special Limited Partner’s view, to effect compliance with the Securities Act. In the event of a an election by the Partnership to require the Special Limited Partner to purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner Partnership given on or before the close of business on the Cut-Off Date that the General Partner Partnership has elected to require the Special Limited Partner to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Special Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the REIT Share Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Special Limited Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Special Limited Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Special Limited Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued delivered upon an acquisition of the Tendered Units by the General Special Limited Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Special Limited Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Special Limited Partner Charter and shall have no rights to require the Partnership to redeem Common Tendered Units or require the Special Limited Partner to acquire Tendered Units if such a redemption or the acquisition of such Common Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the REIT Share Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, to the fullest extent permitted by law, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable deliverable by the General Special Limited Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner Partnership does not elect to require the Special Limited Partner to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may may, in the sole and absolute discretion of the General Partner, elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Special Limited Partner contribute to the Partnership funds from the proceeds of a sale (including by way of a registered public offering offering) by the General Special Limited Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Special Limited Partner shall make a Capital Contribution of any such amounts to the Partnership in exchange for an additional General Partnership Units, and the Partnership is hereby authorized from time to time to issue such additional Partnership Units in consideration therefor without any further act, approval or vote of any Partner Interestor other Persons. Any such contribution shall entitle the General Special Limited Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Special Limited Partner shall not, under any circumstances, elect to not acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the CharterSpecial Limited Partner Charter or result in any violation of the REIT Share Ownership Limit. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Special Limited Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Special Limited Partner’s Partnership Interest comprised of the same number of Partnership Common Units. (2) Subject to the REIT Share Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner, which may be given or withheld in its sole and absolute discretion. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Special Limited Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partnership elects to require the Special Limited Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Special Limited Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Special Limited Partner and paid for, by the issuance delivery of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Special Limited Partner with respect to the REIT Shares issuable deliverable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, in its sole and absolute discretion, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the REIT Share Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its their knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, nor to the best of its knowledge, their knowledge any other Person Related Party shall own REIT Shares in violation of the REIT Share Ownership Limit; and (4) In connection with any Special Redemption, the General Special Limited Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Partnership, the General Partner or the General Special Limited Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to the Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Invitation Homes Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Period, a A Qualifying Common Party shall have the right (subject to the terms and conditions set forth herein) (the “Common Redemption Right”) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such a Common Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Common Units”) in exchange (a “Common Redemption”) for the Common Unit Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Common Redemption shall be exercised pursuant to a Common Unit Notice of Redemption delivered to the Chief Financial Officer of the General Partner by the Qualifying Common Party when exercising the Redemption right (the “Common Tendering Party”). The Partnership’s obligation to effect a Common Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Common Tendering Party that the General Partner it declines to acquire some or all of the Tendered Common Units under Section 15.1.B hereof following receipt of a Common Unit Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Common Redemption, the Common Unit Cash Amount shall be delivered as a certified or bank check payable to the Common Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limit and the Conversion Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Common Units from the Common Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Common Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Common Units for REIT Shares, the General Partner GTJ REIT shall issue and deliver such REIT Shares to the Common Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Common Tendering Party’s exercise of its Common Redemption right Right with respect to such Tendered Common Units and (2) such transaction shall be treated, for federal Federal income tax purposes, as a transfer by the Common Tendering Party of such Tendered Common Units to the General Partner in exchange for the Common Unit REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Common Tendering Party shall sell such number of the Tendered Common Units to the General Partner in exchange for a number of REIT Shares equal to the product of the Common Unit REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Common Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit and/or the Conversion Limit to any such acquisition and (ii) such written representations, representations and investment letters, legal opinions or other instruments letters as reasonably necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Common Units by the General Partner pursuant to this Section 15.1.B, the Common Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Common Units and, upon notice to the Common Tendering Party by the General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the General Partner has elected to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Common Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Common Unit REIT Shares Amount and the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and, to the extent applicable, the Securities Act and relevant state securities or “blue sky” laws. Neither Except as otherwise provided in this Agreement, neither any Common Tendering Party whose Tendered Common Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Common Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Common Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Common Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require Ownership Limit or the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Conversion Limit. To the extent that any attempted Redemption or acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Common Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Common Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Common Unit Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Common Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. Any proceeds from a public offering that are in excess of the Common Unit Cash Amount shall be for the sole benefit of the General Partner. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Common Unit Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Common Unit Cash Amount from the day after the Specified Redemption Date to and including the date on which the Common Unit Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Common Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Common Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (GTJ REIT, Inc.)

Redemption Rights of Qualifying Parties. A. After 8.5.1 On the applicable fifth anniversary of the issuance of the Class A Convertible Preferred Units (but not prior to nor following such date (provided that a Notice of Redemption Hold Periodmay be delivered prior to such fifth anniversary)), if a Qualified Public Offering has been consummated on or at any time prior to such fifth anniversary, subject to Section 11.6.3, a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem (a “Redemption”) all or a portion of the Partnership Common Class A Convertible Preferred Units held by such Tendering Qualifying Party (Partnership Common such Class A Convertible Preferred Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for any of the Cash Amount following, selected by the General Partner in its sole discretion, payable on the Specified Redemption Date: (A) the Redemption Cash Amount; (B) the Redemption Common Unit Amount; or (C) the Redemption Preferred Unit Amount. The Partnership mayFor purposes of this Section 8.5.1, in “Redemption Cash Amount” means an amount equal to the product of (x) the sum of (i) the Class A Convertible Preferred Unit Liquidation Preference Amount, plus (ii) all accumulated and all declared but unpaid distributions relating to a Class A Convertible Preferred Unit, multiplied by (y) the number of Tendered Units, payable, at the General Partner’s sole and absolute discretionexclusive option, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership in cash or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right promissory note maturing five (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i5) years from the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption issuance and having an interest rate at prevailing market terms (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, determined in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) and otherwise in a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay form acceptable to the General Partner on Partner. “Redemption Common Unit Amount” means the Specified Redemption Date an amount in cash number of Common Units equal to the portion quotient of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units Cash Amount divided by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination Value of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership a Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof Unit on the Specified Redemption Date. Until “Redemption Preferred Unit Amount” means the number of perpetual preferred units, each with a Specified Redemption Date market distribution rate and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as with a stockholder of the General Partner with respect liquidation preference equal to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1Class A Convertible Preferred Unit Liquidation Preference Amount, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following equal to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing sum of (iA) the Redemption or (ii) the acquisition number of Tendered Units plus (B) a number equal to the quotient, rounded to the nearest whole number, of the aggregate amount of accrued and unpaid distributions on the Tendered Units, divided by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this AgreementClass A Convertible Preferred Unit Liquidation Preference Amount. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Arizona Land Income Corp)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Period, a (a) (i) A Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Class A Common Units held by such Tendering Qualifying Party (including, for purposes of a contingent notice delivered pursuant to the last sentence of this Section 14.1(a)(i) (such contingent notice delivered pursuant to the last sentence of this Section 14.1(a)(i) or a contingent notice delivered pursuant to the last sentence of Section 15.1, as applicable, a “Contingent Notice”), any Partnership Class A Common Units issuable upon the Conversion of any Profits Interests that either (x) would become Vested Profits Interests upon the consummation of the contingent transaction specified in the applicable Contingent Notice or (y) are Vested Profits Interests) (Partnership Class A Common Units that have in fact been tendered for redemption pursuant to this Section 14.1 being hereafter referred to as “A Tendered Units”) in exchange (a “Redemption”) for the A Cash Amount or A-to- A Shares Amount (subject to Section 14.1(c), at the election of the Partnership) payable on the Specified Redemption Date. The Partnership mayDate (in each case, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner on any trading day of an established securities exchange by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Any Notice of Redemption and may be made contingent on (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause with the Specified Redemption Date to be delayed for up to an additional 60 Business Days to occurring subject to, and immediately prior to) the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment consummation of the Cash Amount. B. Notwithstanding the provisions (x) a Change of Section 15.1.A hereofControl Transaction, on (y) a tender or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some exchange offer conducted by Super HoldCo or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption Subsidiaries (or any tender or exchange offer by a third party that Super HoldCo or any of Partnership Common Units its Subsidiaries (or the Board of Directors) recommends that Super HoldCo’s stockholders accept) or (z) a registered offering for Redemption if which the applicable Qualifying Party would have “piggyback” registration rights following a Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, withoutUnit Acquisition, in each which case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any purposes of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.BUnit Acquisition, such Tendering Party shall pay notwithstanding anything to the General Partner on contrary in this Agreement, “Trading Price” shall mean the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units price per Class A Share implied by the General Partner pursuant to Section 15.1.B hereofapplicable Change of Control Transaction, as the case may be) shall be subject to the expiration tender or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner exchange offer or an Assigneeoffering, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Agreement of Exempted Limited Partnership (WeWork Inc.)

Redemption Rights of Qualifying Parties. A. After the expiration of the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) (the “Redemption Right”) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such a Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Common Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Common Units at the request of the Holder thereof Qualifying Party prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth hereinherein (including the expiration of the applicable Specified Redemption Date)) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Common Unit Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner it declines to acquire some or all of the Tendered Common Units under Section 15.1.B hereof following receipt of a Common Unit Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership LimitLimit (which shall only be applicable so long as the General Partner continues to qualify as or realistically aspires to re-qualify as a REIT), elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Common Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Common Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right Right with respect to such Tendered Common Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Common Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Common Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or and other instruments as reasonably necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Common Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Common Units and, upon notice to the Tendering Party by the General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the General Partner has elected to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Common Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and, to the extent applicable, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Common Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and such Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise all rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Common Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereofhereof and so long as the General Partner continues to qualify as a REIT, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Common Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. . D. If the General Partner does not elect to acquire the Tendered Common Units pursuant to Section 15.1.B hereof:: 87 (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Common Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. Any proceeds from a public offering that are in excess of the Cash Amount shall be for the sole benefit of the General Partner. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Mobile Infrastructure Corp)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Twelve-Month Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units or Investor Unit Rights (as the case may be) held by such Tendering Party (Partnership Common Units or Investor Unit Rights (as the case may be) that have in fact been tendered for redemption being hereafter referred to as "Tendered -------- Units") in exchange (a "Redemption") for the Cash Amount payable on the ----- ---------- Specified Redemption Date. The Partnership may, in the Managing General Partner’s 's sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Twelve-Month Period (subject to the terms and conditions set forth herein) (a "Special Redemption"); provided, however, provided -------- that the Managing General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 16.1.G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the Managing General Partner by the Qualifying Party when exercising the Redemption right (the "Tendering Party"). The Partnership’s 's obligation to --------------- effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) until and unless the date the General Partner notifies the Tendering Party that the Managing General Partner declines or fails to acquire some or all of the Tendered Units under exercise its purchase rights pursuant to Section 15.1.B 16.1.B hereof following receipt of a Notice of Redemption (a "Declination") and (ii) before the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering 101 Party or, in the Managing General Partner’s 's sole and absolute discretion, in immediately available funds, in each case, funds on or before the Specified Redemption Date; provided, however, that 90/th/ day following the date on which the Managing General Partner may elect to cause receives a Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountTendering Party. B. Notwithstanding the provisions of Section 15.1.A 16.1.A hereof, on or before the close of business on the Cut-Off Date, the Managing General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership LimitLimit and the transfer restrictions and other limitations of the Charter, elect to acquire some or all (such percentage being referred to as the "Applicable Percentage") --------------------- of the Tendered Units from the Tendering Party in exchange for the REIT Shares Amount calculated based on the portion of Tendered Units it elects to acquire in exchange for REIT Shares. If the General Partner elects In making such election to acquire some or all of the Tendered Units pursuant to this Section 15.1.BUnits, the Managing General Partner shall give written notice thereof to the Tendering Party on act in a fair, equitable and reasonable manner that neither prefers one group or before the close class of business on the Cut-Off DateQualifying Parties over another nor discriminates against a group or class of Qualifying Parties. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the Managing General Partner so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the Managing General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner WEA may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s WEA's view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the Managing General Partner pursuant to this Section 15.1.B16.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the Managing General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the Managing General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B16.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the Managing General Partner’s 's notice relates shall not accrue or arise. A number of REIT Shares equal to the The product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the Managing General Partner as duly authorized, validly issued, fully paid and non-non- assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Bylaws of WEA, the Securities Act and relevant state securities or "blue sky" laws. Neither any Tendering Party whose Tendered Units are acquired by the Managing General Partner pursuant to this Section 15.1.B16.1.B, any Partner, any Investor, any Assignee nor any other interested Person shall have any right to require or cause the General Partner WEA to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B16.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation -------- ------- shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner WEA and any 102 such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the Managing General Partner pursuant to this Section 15.1.B 16.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner WEA in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A 16.1.A and 15.1.B 16.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights with respect to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the Managing General Partner pursuant to Section 15.1.B 16.1.B hereof would be in violation of this Section 15.1.C16.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner WEA under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A 16.1.B hereof. D. If In the event of a Declination: (1) The Managing General Partner does not elect shall give notice of such Declination to the Tendering Party on or before the close of business on the Cut-Off Date. The failure of the Managing General Partner to give notice of such Declination by the close of business on the Cut- Off Date shall be deemed to be an election by the Managing General Partner to acquire the Tendered Units pursuant to Section 15.1.B hereof:in exchange for REIT Shares. (12) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the Managing General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner WEA of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. Any proceeds from a public offering that are in excess of the Cash Amount shall be for the sole benefit of WEA. The Managing General Partner (and/or any Special Limited Partner designated by the Managing General Partner) shall make a Capital Contribution of any such amounts to the Partnership for an additional Managing General Partner Interest and/or Limited Partner Interest. Any such contribution shall entitle the Managing General Partner and any such Special Limited Partner (as the case may be) to an equitable Percentage Interest adjustment. (23) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B 16.1.B hereof, the Managing General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for the REIT Shares Amount if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 16.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units or Investor Unit Rights (as the case may be) for Redemption if the Tendered Units are acquired by the Managing General Partner pursuant to Section 15.1.B 16.1.B hereof) pursuant to this Section 15.116.1: (1) All Partnership Common Units or Investor Unit Rights (as the case may be) acquired by the Managing General Partner pursuant to Section 15.1.B 16.1.B hereof shall be contributed by the Managing General Partner (and/or any Special Limited Partner(s) designated by the Manag ing General Partner) in such proportions as the Managing General Partner shall determine. Any Partnership Common Units or Investor Unit Rights so contributed by the Managing General Partner shall automatically, and without further action required, be converted into and deemed to be a Managing General Partner Interest comprised of the same number of Partnership Common Units. Any Partnership Common Units so contributed by any Special Limited Partner shall remain outstanding and any Investor Unit Rights shall automatically, and without further action required, be converted into and deemed to be a Limited Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one two thousand (1,0002,000) Partnership Common Units or less than two thousand (2,000) Investor Unit Rights (as the case may be) or, if such Tendering Party owns holds (as a Limited Partner Partner, an Investor, or, economically, as an Assignee) less than one two thousand (1,0002,000) Partnership Common UnitsUnits or Investor Unit Rights (as the case may be), all of the Partnership Common Units or Investor Unit Rights held by such Tendering Party, without, in each case, the Consent of the General Partner.. 104 (3) If (i) a Each Tendering Party surrenders its Tendered Units (a) may effect a Redemption only once in each fiscal quarter of a Twelve-Month Period and (b) may not effect a Redemption during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner WEA for a distribution to its stockholders shareholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the Managing General Partner pursuant to Section 15.1.B 16.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions provision of Section 11.5 hereof) all Partnership Partner ship Common Units or Investor Unit Rights (as the case may be) subject to any Redemption, and be treated as a Limited Partner Partner, an Investor, or an Assignee, as applicable, with respect to such Partnership Common Units or Investor Unit Rights for all purposes of this Agreement, until such Partnership Common Units or Investor Unit Rights are either paid for by the Partnership pursuant to Section 15.1.A 16.1.A hereof or transferred to the Managing General Partner (or directly to the Managing General Partner or Special Limited Partner) and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 16.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the Managing General Partner pursuant to Section 15.1.B 16.1.B hereof, the Tendering Party shall have no rights as a stockholder shareholder of the General Partner WEA with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner16.1, the Tendering Party shall submit the following to the Managing General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the Managing General Partner pursuant to Section 15.1.B 16.1.B hereof, neither the Tendering 105 Party nor to the best of their knowledge any Related Party will own REIT Shares in violation excess of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the Managing General Partner pursuant to Section 15.1.B 16.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the Managing General Partner pursuant to Section 15.1.B 16.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its their knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(116.1.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the Managing General Partner pursuant to Section 15.1.B 16.1.B hereof, neither the Tendering Party nor, nor to the best of its knowledge, their knowledge any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and. (4) In connection with any Special Redemption, the Managing General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or Partnership, the Managing General Partner or WEA to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B 16.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Westfield America Inc)

Redemption Rights of Qualifying Parties. A. After the Twelve-Month Period applicable Redemption Hold Periodto such Common Units, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership Company to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership Company may, in the General PartnerManager’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Twelve-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner Manager first receives an a written legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner Manager by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The PartnershipCompany’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of Company (i) until and unless the date the General Partner notifies the Tendering Party that the General Partner Parent declines or fails to acquire some or all of the Tendered Units under exercise its purchase rights pursuant to Section 15.1.B hereof below following receipt of a Notice of Redemption (a “Declination”) and (ii) until the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General PartnerManager’s sole and absolute discretion, in immediately available funds, in each case, funds on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner Parent may, in the General Partner’s its sole and absolute discretion but subject to the Ownership Limitdiscretion, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for the REIT Shares Amount calculated based on the portion of Tendered Units it elects to acquire in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner Parent so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number of the Tendered Units to the General Partner Parent in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner Parent may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General PartnerParent’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner Parent pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership Company to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner Parent, given on or before the close of business on the Cut-Off Date Date, that the General Partner Parent has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership Company to effect a Redemption of the Tendered Units as to which the General PartnerParent’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner Parent as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner Parent pursuant to this Section 15.1.B, any PartnerMember, any Assignee nor any other interested Person shall have any right to require or cause the General Partner Parent to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner Parent and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner Parent pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner Parent in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A Sections 15.1.A, 15.1.B and 15.1.B 15.1.H hereof, (i) no Person shall be entitled to effect a Redemption for cash or an exchange for REIT Shares to the Tendering Parties extent the ownership or right to acquire REIT Shares pursuant to such exchange on the Specified Redemption Date could cause such Person (or any other Person) to violate the restrictions on ownership and transfer of REIT Shares set forth in the Charter, after giving effect to any waivers or modifications of such restrictions by the Board of Directors, and (ii) no Person shall have no any rights under this Agreement that to acquire REIT Shares which would otherwise be prohibited under the Charter, after giving effect to any waivers or modifications of such restrictions by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition Board of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership LimitDirectors. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner Parent pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initioinitio and of no force or effect, and the Tendering Party shall not acquire any rights or economic interests in the Cash Amount otherwise payable upon such Redemption or the REIT Shares otherwise issuable by the General Partner Parent under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If In the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereofevent of a Declination: (1) The Partnership Parent shall give notice of such Declination to the Tendering Party on or before the close of business on the Cut-Off Date. The failure of the Parent to give notice of such Declination by the close of business on the Cut-Off Date shall be deemed to be an election by the Parent to acquire the Tendered Units in exchange for REIT Shares. (2) The Company may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner Parent contribute to the Partnership Company funds from the proceeds of a registered public offering by the General Partner Parent of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustmentCompany. (23) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, Applicable Federal Short-Term Rate as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B or Section 15.1.H hereof, if the General Partner shall not, under any circumstances, elect to acquire any Parent’s acquisition of Tendered Units in exchange for the REIT Shares if such acquisition Amount would be prohibited under the Charter, then (i) the Parent shall not elect to acquire such Tendered Units, and (ii) the Company shall not be obligated to effect a Redemption of such Tendered Units. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner Parent pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by Without the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised consent of the same number of Partnership Common Units. (2) Subject to the Ownership LimitManager, no Tendering Party may effect a Redemption for less than one two thousand five hundred (1,0002,500) Partnership Common Units or, if such Tendering Party owns (as a Limited Partner or, economically, as an Assignee) holds less than one two thousand five hundred (1,0002,500) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (32) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Company Record Date with respect to a distribution payable to Holders of Common Units, and before the record date established by the General Partner Parent for a distribution dividend to its stockholders of some or all of its portion of such Partnership Company distribution, and (ii) the General Partner Parent elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, then such Tendering Party shall pay to the General Partner Parent on the Specified Redemption Date an amount in cash equal to the portion of the Partnership Company distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units. (43) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner Parent pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended, and any other requirements of applicable law. (54) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner Member or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until the Specified Redemption Date and until such Partnership Common Tendered Units are either paid for by the Partnership Company pursuant to Section 15.1.A hereof or transferred to the General Partner Parent and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. 15.1.B. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner Parent pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner Parent with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to unless waived by the General PartnerParent, the Tendering Party shall submit the following to the General PartnerParent, in addition to the Notice of Redemption: (1) A a written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge such Tendering Party’s knowledge, any Related Party Party, and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner Parent pursuant to Section 15.1.B hereof, neither the Tendering Party nor nor, to the best of their knowledge such Tendering Party’s knowledge, any Related Party Party, will own REIT Shares in violation excess of the Ownership Limit; (2) A a written representation that neither the Tendering Party nor nor, to the best of its knowledge such Tendering Party’s knowledge, any Related Party Party, has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An an undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Partner Parent pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and and, to the best of its knowledge such Tendering Party’s knowledge, any Related Party remain Party, remains unchanged from that disclosed in the affidavit required by Section 15.1.G(1) ), or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Partner Parent pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its such Tendering Party’s knowledge, any other Person Related Party, shall own REIT Shares in violation of the Ownership Limit; and (4) In in connection with any Special Redemption, the General Partner Parent shall have the right to receive require the Tendering Party to deliver an opinion of counsel reasonably satisfactory to it the Parent to the effect that the proposed Special Redemption will not cause the Partnership Company, the Manager or the General Partner Parent to violate any U.S. federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party Redemption or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Alexander & Baldwin, Inc.)

Redemption Rights of Qualifying Parties. A. After the expiration of the applicable Redemption Hold Initial Holding Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) (the “Redemption Right”) to require the Partnership Company to redeem all or a portion of the Partnership Common Units held by such a Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Common Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership Company may, in the General PartnerMIC’s sole and absolute discretion, redeem Tendered Common Units at the request of the Holder thereof Qualifying Party prior to the end of the applicable Redemption Hold Initial Holding Period (subject to the terms and conditions set forth hereinherein (including the expiration of the applicable Specified Redemption Date)) (a “Special Redemption”); provided, however, that the General Partner MIC first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Common Unit Notice of Redemption delivered to the General Partner MIC by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The PartnershipCompany’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership Company until the earlier of (i) the date the General Partner MIC notifies the Tendering Party that the General Partner it declines to acquire some or all of the Tendered Common Units under Section 15.1.B hereof following receipt of a Common Unit Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General PartnerMIC’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner MIC may, in the General Partner’s its sole and absolute discretion but subject to the Ownership LimitLimit (which shall only be applicable so long as MIC qualifies as or intends to qualify as a REIT), elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Common Units from the Tendering Party in exchange for REIT Shares. If the General Partner MIC elects to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the General Partner MIC shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner MIC elects to acquire any of the Tendered Common Units for REIT Shares, the General Partner MIC shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner MIC shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right Right with respect to such Tendered Common Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Common Units to the General Partner MIC in exchange for the REIT Shares Amount. If the General Partner MIC so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Common Units to the General Partner MIC in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner MIC may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or and other instruments as reasonably necessary, in the General PartnerMIC’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Common Units by the General Partner MIC pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership Company to effect a Redemption of such Tendered Common Units and, upon notice to the Tendering Party by the General Partner MIC, given on or before the close of business on the Cut-Off Date Date, that the General Partner MIC has elected to acquire some or all of the Tendered Common Units pursuant to this Section 15.1.B, the obligation of the Partnership Company to effect a Redemption of the Tendered Common Units as to which the General PartnerMIC’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Shares Amount and the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner MIC as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and, to the extent applicable, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Common Units are acquired by the General Partner MIC pursuant to this Section 15.1.B, any PartnerMember, any Assignee nor any other interested Person shall have any right to require or cause the General Partner MIC to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner MIC and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and such Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise all rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Common Units by the General Partner MIC pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner MIC in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereofhereof and so long as MIC qualifies as a REIT, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Common Units by the General Partner MIC pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner MIC under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner MIC does not elect to acquire the Tendered Common Units pursuant to Section 15.1.B hereof: (1) The Partnership Company may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner MIC contribute to the Partnership Company funds from the proceeds of a registered public offering by the General Partner MIC of REIT Shares sufficient to purchase the Tendered Common Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the PartnershipCompany. The General Partner Any proceeds from a public offering that are in excess of the Cash Amount shall be for the sole benefit of MIC. MIC shall make a Capital Contribution of any such amounts to the Partnership Company for an additional General Partner Interest. Any such contribution shall entitle the General Partner MIC to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner MIC shall not, under any circumstances, elect to acquire any Tendered Common Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Common Units are acquired by the General Partner MIC pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner MIC pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner an Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner Common Member or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General PartnerMIC. (3) If (i) a Tendering Party surrenders its Tendered Common Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner MIC for a distribution to its stockholders of some or all of its portion of such Partnership Company distribution, and (ii) the General Partner MIC elects to acquire any of such Tendered Common Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner MIC on the Specified Redemption Date an amount in cash equal to the portion of the Partnership Company distribution in respect of the Tendered Common Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Common Units by the General Partner MIC pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner Common Member or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership Company pursuant to Section 15.1.A hereof or transferred to the General Partner MIC and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Common Units by the General Partner MIC pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner MIC with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of the Redemption rights Right pursuant to this Section 15.1, except as otherwise Consented to agreed by the General PartnerMIC, in its sole and absolute discretion, the Tendering Party shall submit the following to the General PartnerMIC, in addition to the Common Unit Notice of Redemption: (1) A written affidavit, dated the same date as the Common Unit Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Common Units by the General Partner MIC pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Common Units by the General Partner MIC pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Common Units by the General Partner MIC pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its their knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Common Units by the General Partner MIC pursuant to Section 15.1.B hereof, neither the Tendering Party nor, nor to the best of its knowledge, their knowledge any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and. (4) In connection with any Special Redemption, the General Partner MIC shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Company or the General Partner MIC to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Common Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units and Performance Units and holders of Class A Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units, Performance Units or Class A Units, as applicable, have been converted into Partnership or exercised for, as applicable, Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Mobile Infrastructure Corp)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Period, a (a) A Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem exchange all or a portion of the Partnership Company Class B Common Units held by such Tendering Qualifying Party (Partnership Company Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Class A Common Stock Amount or, at the sole and absolute election of the Managing Member, on behalf of the Company, for the Cash Amount payable on the Specified Redemption Date. The Partnership mayDate (in each case, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, howeverin each case pursuant to, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemptionand in accordance with, the issuance Certificate of Incorporation and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B provisions of this AgreementArticle XIV. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner Managing Member by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against In the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party event that the General Partner declines Managing Member elects to acquire some cause the Company to redeem all or all a portion of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) in exchange for the Business Day following the Cut-Off Date. In the event of a Redemptionapplicable Cash Amount, the such applicable Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General PartnerManaging Member’s sole and absolute discretion, in immediately available funds, in each case, by wire transfer of funds on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to . To the extent required for determined by the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off DateManaging Member, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) Company will treat a redemption of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close Article XIV (including any redemption for a Cash Amount) as a disguised sale of business on the Cut-Off Date. membership interests under Code section 707(a)(2)(B). (b) If the General Partner elects to acquire any Managing Member, on behalf of the Tendered Units for REIT SharesCompany, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may does not elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or redeem all of the Tendered Units pursuant to this Section 15.1.Bfrom the Tendering Party in exchange for the Cash Amount, then the obligation of the Partnership to effect a Redemption portion of the Tendered Units not being redeemed for the Cash Amount shall be redeemed for the Class A Common Stock Amount calculated based on the portion of Tendered Units to be acquired in exchange for Class A Common Stock (such percentage being referred to as the “Applicable Percentage”). The Tendering Party shall submit such written representations, investment letters, legal opinions or other instruments as the Managing Member in good faith determines to which be necessary, to effect compliance with the General Partner’s notice relates shall not accrue or ariseSecurities Act. A number of REIT Shares shares of Class A Common Stock equal to the product of the Applicable Percentage and the REIT Shares Class A Common Stock Amount, if applicable, shall be delivered by the General Partner Managing Member as duly authorized, validly issued, fully paid and non-assessable REIT Shares shares of Class A Common Stock and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than restrictions provided in the Ownership LimitCertificate of Incorporation, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares shares of Class A Common Stock and Rights for all purposes, including, without limitation, including rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares of Class A Common Stock issued upon an acquisition of the Tendered Units by the General Partner in connection with a Redemption pursuant to this Section 15.1.B 14.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner Managing Member in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1c) The Partnership Company may elect to raise funds for the payment of the any applicable Cash Amount either (ai) solely by requiring that the General Partner Managing Member or its Subsidiaries contribute to the Partnership Company funds from (A) the proceeds of a registered public offering by the General Partner Managing Member of REIT Shares shares of Class A Common Stock sufficient to purchase the Tendered Units or (bB) any other sources available to the Managing Member or its Subsidiaries or (ii) with the consent of the Tendering Party, from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the PartnershipCompany. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base applicable federal short-term rate on corporate loans at large United States money center commercial banks, as published from time to time in monthly by the Wall Street Journal (but not higher than the maximum lawful rate)IRS. E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition would be prohibited under the Charter. F. (d) Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof)contrary, with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.114.1: (1i) All Partnership Common Units acquired by Without the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised consent of the same number of Partnership Common Units. (2) Subject to the Ownership LimitManaging Member, no Tendering Party may effect a Redemption for less fewer than one thousand [_________(1,000) Partnership ____)] Company Class B Common Units (as adjusted for any unit split, unit distribution, reverse unit split, reclassification or similar event, in each case with such adjustment being determined by the Managing Member) or, if such Tendering Party owns holds fewer than [_________(____)] Company Class B Common Units (as a Limited Partner oradjusted for any unit split, economicallyunit distribution, as an Assignee) less than one thousand (1,000) Partnership Common Unitsreverse unit split, reclassification or similar event, in each case with such adjustment being determined by the Managing Member), all of the Partnership Company Class B Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3ii) If (iA) a Tendering Party surrenders its Tendered Units during the period after the Partnership Company Record Date with respect to a distribution payable to Holders of Company Common Units, and before the record date established by the General Partner Managing Member for a distribution dividend to its stockholders of some or all of its portion of such Partnership Company distribution, and (iiB) the General Partner Managing Member elects to acquire redeem any of such Tendered Units in exchange for REIT Shares Class A Common Stock pursuant to Section 15.1.B14.1(b), then such Tendering Party shall pay to the General Partner Managing Member on the Specified Redemption Date an amount in cash equal to the portion of the Partnership Company distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution paid or payable in respect of such REIT SharesTendered Units. (4iii) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (5iv) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof10.4) all Partnership Company Common Units subject to any Redemption, and be treated as a Limited Partner Member or an Assignee, as applicable, with respect to such Partnership Company Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption DateDate and until such Tendered Units are redeemed. Until a Specified Redemption Date and an acquisition a redemption of the Tendered Units by the General Partner pursuant to Section 15.1.B hereofManaging Member for the Class A Common Stock Amount, the Tendering Party shall have no rights as a stockholder of the General Partner Managing Member with respect to the REIT Shares shares of Class A Common Stock issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4e) In connection with any Special Redemption, the General Partner Managing Member shall have the right to receive an opinion of counsel for the Tendering Party reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership Company or the General Partner Managing Member to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party Redemption or the issuance and sale of REIT Shares Class A Common Stock to the Tendering Party pursuant to Section 15.1.B 14.1(b) of this Agreement. H. Holders of LTIP Units shall not be entitled (f) Notwithstanding anything herein to the right contrary, a Qualifying Party may withdraw or amend a Notice of Redemption, in whole or in part, before the effectiveness of the Redemption, at any time before 5:00 p.m. New York City time, on the Business Day immediately preceding the Specified Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units Date (or any other class or series such later time as may be required by applicable law) by delivery of Partnership a written notice of withdrawal to the Managing Member and the Company, specifying (i) the number of withdrawn Company Class B Common Units, (ii) if any, the number of Company Class B Common Units entitled as to such right which the Notice of Redemption remains in effect and (iii) if the Qualifying Party so determines, a new Specified Redemption Date or any other new or revised information permitted in the Notice of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Wayne Farms, Inc.)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Fourteen-Month Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Fourteen-Month Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an a legal opinion of counsel reasonably satisfactory to it to the same effect that as the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to legal opinion described in Section 15.1.B 15.1.G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that tenth (10th) Business Day following the date on which the General Partner may elect to cause receives a Notice of Redemption from the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash AmountTendering Party. B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership LimitCharter. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof. D. If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1.B hereof: (1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the General Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for REIT Shares if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Act. (5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date;; and (3) An undertaking to certify, at and as a condition of to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its their knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, nor to the best of its knowledge, their knowledge any other Person Related Party shall own REIT Shares in violation of the Ownership Limit; and. (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. LTIP Unit Exception and Redemption of Partnership Common Units Issued Upon Conversion of LTIP Units. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) in accordance with their terms.

Appears in 1 contract

Samples: Limited Partnership Agreement (Younan Properties Inc)

Redemption Rights of Qualifying Parties. A. After the applicable Redemption Hold Twelve-Month Period, a Qualifying Party Party, but no other Limited Partner or Assignee, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem (a "Redemption") all or a portion of the Partnership Common Units held by such Tendering Qualifying Party (such Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as “"Tendered Units") in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Redemption Hold Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the General Partner first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the such Qualifying Party (the "Tendering Party") when exercising the Redemption right (the “Tendering Party”)right. The Partnership’s 's obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of until and unless there has been a Notice of Redemption Declination and (ii) before the Business Day following the Cut-Off Date. Regardless of the binding or non- binding nature of a pending Redemption, a Tendering Party shall have no right to receive distributions with respect to any Tendered Units (other than the Cash Amount) paid after delivery of the Notice of Redemption, whether or not the Partnership Record Date for such distribution precedes or coincides with such delivery of the Notice of Redemption; provided, however, that in the event that the General Partner on behalf of the Partnership elects to fund the Cash Amount with the proceeds of an Offering Funding pursuant to Section 8.6.D hereof, the Tendering Party's right to receive distributions shall not be suspended as hereinbefore provided and such Tendering Party shall have the right to receive distributions actually made hereunder prior to the date of the closing of the Offering Funding the proceeds of which are used to pay the Cash Amount. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s 's sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. B. Notwithstanding the provisions of Section 15.1.A 8.6.A hereof, on or before the close of business on the Cut-Off Date, the General Partner may, in the General Partner’s its sole and absolute discretion but subject to the Ownership LimitLimit and the transfer restrictions and other limitations of the Charter, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant from the Tendering Party (such percentage being referred to this Section 15.1.Bas the "Applicable Percentage") in exchange for the REIT Consideration. In making such election, the General Partner shall give written notice thereof to the Tendering Party on act in a fair, equitable and reasonable manner that neither prefers one group or before the close class of business on the Cut-Off Date. If the General Partner elects to acquire any Qualifying Parties over another nor discriminates against a group or class of the Tendered Units for REIT Shares, the General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for the REIT Shares AmountQualifying Parties. If the General Partner so elects, on the Specified Redemption Date, Date the Tendering Party shall sell such number the Applicable Percentage of the Tendered Units to the General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the General Partner to cause additional REIT Shares to be issuedConsideration. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s 's view, to effect compliance with the Securities Act. In the event of a purchase of the any Tendered Units by the General Partner pursuant to this Section 15.1.B8.6.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units Units, and, upon notice to the Tendering Party by the General Partner Partner, given on or before the close of business on the Cut-Off Date Date, that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1.B8.6.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s 's notice relates shall not accrue or arise. A number of The REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, Consideration shall be delivered by the General Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership LimitLimit and other restrictions provided in the Charter, the Bylaws of the General Partner, the Securities Act and relevant state securities or "blue sky" laws. Neither Except as set forth in Section 8.8 below, neither any Tendering Party whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1.B8.6.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B8.6.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1.B 8.6.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws. C. Notwithstanding the provisions of Section 15.1.A 8.6.A and 15.1.B 8.6.B hereof, the no Tendering Parties Party shall have no any rights under this Agreement that would otherwise be prohibited by under the Charter and shall have no rights with respect to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1.B hereof would cause any Person (including the Tendering Partner and regardless of whether the General Partner would exercise, or would be permitted to exercise, its rights under Section 15.1.B) to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof would be in violation of this Section 15.1.C8.6.C, it shall be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the General Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A 8.6.B hereof. D. If In the event that the General Partner does not elect declines or fails to acquire the exercise its purchase rights for all Tendered Units pursuant to Section 15.1.B hereof:8.6.B hereof following receipt of a Notice of Redemption (a "Declination"): (1) The General Partner shall give notice of such Declination to the Tendering Party on or before the close of business on the Cut-Off Date. The failure of the General Partner to give notice of such Declination by the close of business on the Cut-Off Date shall itself constitute a Declination. (2) Subject to Section 11.6.D, the General Partner on behalf of the Partnership may elect to raise funds for the payment of all or any percentage of the Cash Amount either (a) by requiring that contribution by the General Partner contribute to the Partnership of funds from the proceeds of a private placement or registered public offering (each, an "Offering Funding") by the General Partner of a number of REIT Shares sufficient to purchase or other securities of the Tendered Units REIT ("Offering Funding Shares") or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. (3) If an Offering Funding has been elected by the General Partner, promptly upon the General Partner's receipt of the Notice of Redemption and the General Partner giving notice of its Declination, the General Partner shall give notice (a "Single Funding Notice") to all Qualifying Parties then holding a Partnership Interest (or an interest therein) and having Redemption rights pursuant to this Section 8.6 and require that all such Qualifying Parties elect whether or not to effect a Redemption of their Partnership Common Units to be funded through an Offering Funding. In the event that any such Qualifying Party elects to effect such a Redemption, it shall give notice thereof and of the number of Partnership Common Units to be made subject thereto in writing to the General Partner within ten (10) Business Days after receipt of the Single Funding Notice, and such Qualifying Party shall be treated as a Tendering Party for all purposes of this Section 8.6. In the event that a Qualifying Party does not so elect, it shall be deemed to have waived its right to effect a Redemption for the current Twelve-Month Period; provided, however, that the General Partner shall not be 38 required to acquire Partnership Common Units pursuant to this Section 8.6.D more than twice within a calendar year. Any proceeds from an Offering Funding that are in excess of the aggregate Cash Amount paid to all Tendering Parties pursuant to this Section 8.6.D shall be for the sole benefit of the General Partner. The General Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional General Partner Interest. Any such contribution shall entitle the General Partner to an equitable Percentage Interest adjustment. (2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate). E. Notwithstanding the provisions of Section 15.1.B 8.6.B hereof, the General Partner shall not, under any circumstances, elect to acquire any Tendered Units in exchange for the REIT Shares Consideration if such acquisition exchange would be prohibited under the Charter. F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C 8.6.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1.B 8.6.B hereof) pursuant to this Section 15.18.6: (1) All Partnership Common Units acquired by the General Partner pursuant to Section 15.1.B 8.6.B hereof shall automatically, and without further action required, be converted into and deemed to be a General Partner Interest comprised of the same number of Partnership Common Units. (2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand two hundred fifty (1,000250) Partnership Common Units or, if such Tendering Party owns holds (as a Limited Partner or, economically, as an Assignee) less than one thousand two hundred fifty (1,000250) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, without, in each case, the Consent of the General Partner. (3) If (i) a Each Tendering Party surrenders (a) may effect a Redemption only once in each fiscal quarter of a Twelve-Month Period, unless otherwise permitted by the General Partner, in its Tendered Units sole and absolute discretion and (b) may not effect a Redemption during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares. (4) Notwithstanding anything herein to the contrary, with respect to any Redemption or acquisition of Tendered Units by the General Partner pursuant to Section 8.6.B hereof, in the event that the General Partner gives notice to all Limited Partners (but excluding any Assignees) then owning Partnership Interests (a "Primary Offering Notice") that the General Partner desires to effect a primary offering of its equity securities, then, unless the General Partner otherwise consents, commencement of the actions denoted in Section 8.6.D hereof as to an Offering Funding, if any, with respect to any Notice of Redemption thereafter received, whether or not the Tendering Party is a Limited Partner, may be delayed until the earlier of (a) the completion of the primary offering or (b) ninety (90) days following the giving of the Primary Offering Notice. (5) Without the consent of the General Partner, no Tendering Party may effect a Redemption within ninety (90) days following the closing of any prior Offering Funding. (6) The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx ActAntitrust Improvements Act of 1976, as amended. (57) The Subject to Section 8.6.A, the Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions provision of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A 8.6.A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B 8.6.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B 8.6.B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such acquisition. G. In connection with an exercise of (8) Any Partnership Common Units tendered for Redemption rights pursuant to this Section 15.18.6 that are Paired Common Units shall include for all purposes under this Section 8.6, except the Special Voting Shares attached thereto as otherwise Consented to required by Section 8.9 below, Section 6.3.3 of the Charter and the applicable provisions of the Pairing Agreement. All Special Voting Shares acquired by the General Partner, the Tendering Party shall submit the following to the General Partner, Partnership in addition to the Notice of Redemption: (1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge connection with any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered attached Paired Common Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit; (2) A written representation that neither the Tendering Party nor to the best of its knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; (3) An undertaking to certify, at 8.6.A shall be cancelled and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit; and (4) In connection with any Special Redemption, the General Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership or the General Partner to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement. H. Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Common Units entitled to such right of Redemption) retired in accordance with their terms.Section 6.3.4

Appears in 1 contract

Samples: Agreement of Limited Partnership (Affordable Residential Communities Inc)

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