Common use of Terms of Exchange Right Clause in Contracts

Terms of Exchange Right. (i) Upon the terms and subject to the conditions set forth in this Section 8.4 and the last sentence of Section 8.1(c), at any time, and from time to time, following the expiration of the Lockout Period, subject to obtaining the prior written consent of the Titanium Family Designee, the Titanium Family Group and any Family Transferees shall have the right to transfer to the Company any or all Common Units owned by the Titanium Family Group (or any Family Transferee), but, with respect to any Exchange, no less than a number of Common Units equal to ten percent (10%) of the Common Units owned by the Titanium Family Group as of the Effective Date (subject to any adjustment necessary to account for any split, dividend, distribution, combination, reclassification or similar event, in each case, in respect of the Common Units) (unless all of the Common Units owned by the Titanium Family Group and any Family Transferees are being Exchanged, in which case the foregoing limitation shall not apply), in exchange for, at the election of the Titanium Family Designee, (x) a number of Silver OP Units, (y) cash, or (z) a mix of Silver OP Units and cash, in each case, determined pursuant to this Section 8.4, which the Company shall pay to such Exchanging Member(s) in respect of such transfer. Notwithstanding anything herein to the contrary, if and only if the Titanium Family Group and any Family Transferees submit an Exchange Notice for a Total Titanium Exchange, Silver OP shall have the option to modify the Per Unit Consideration Election set forth therein to make the Silver Cash Consideration Percentage equal to 50% and the Silver OP Unit Consideration Percentage equal to 50% (for example, if the Exchanging Members elect, pursuant to such Exchange Notice, to receive cash as consideration for all of such Exchange and Silver OP exercises its option to modify such election as set forth in this sentence, the Exchanging Members shall receive 50% of the consideration for such Exchange in cash and 50% of the consideration for such Exchange in Silver OP Units); provided that the Titanium Family Designee shall only be permitted to elect to receive Silver OP Units, and the Silver Member shall only be permitted to modify the Per Unit Consideration Election, in each case if the Silver OP Units to be received in such Exchange are redeemable or exchangeable for Equity Shares on a one-for-one basis and the Equity Shares are then listed for trading on a national securities exchange. (ii) Upon the terms and subject to the conditions set forth in this Section 8.4 and the last sentence of Section 8.1(c), by delivering written notice (a “Call Exchange Notice”) (which notice may not be revoked once delivered) to the Titanium Family Designee during (x) the ninety (90) day period immediately following the date on which a Qualified Expert issues a written decision (the “Triggering Decision”) in which the Silver Member is designated by such Qualified Expert as the predominately prevailing party with respect to any Deadlock where the Deadlock Notice was delivered after January 1, 2021 (and provided that a Call Exchange Notice may only be delivered pursuant to this clause (x) if (A) a Qualified Expert has also, within the eighteen (18) month period immediately preceding the date the Deadlock Notice was delivered with respect to the Triggering Decision, issued a written decision (the “Prior Decision”) in which the Silver Member is designated by such Qualified Expert as the predominately prevailing party with respect to a different Deadlock where the Deadlock Notice was delivered after January 1, 2021 and (B) at least one of the Triggering Decision or the Prior Decision was a decision with respect to a Deadlock where the Deadlock Notice was delivered by the Titanium Family Designee) or (y) the period from and after the first date on which the Titanium Family Group and the Family Transferees hold no Common Units, the Silver Member shall have the right (the “Silver Call Right”) to cause the Titanium Family Group, any Family Transferees and all other Members (other than the Silver Member) to transfer to the Company all Common Units owned by them (in which case all such Common Units shall be deemed to be Exchanged Units and the Titanium Family Group, Family Transferees and such other Members shall be deemed to be the Exchanging Members), in exchange for, at the election of the Silver Member, (x) a number of Silver OP Units, (y) cash, or (z) a mix of Silver OP Units and cash, in each case, determined pursuant to this Section 8.4, which the Company shall pay to such Exchanging Member(s) in respect of such transfer; provided, that the Titanium Family Designee shall have the option to modify the Per Unit Consideration Election set forth in the Call Exchange Notice (by delivering written notice of such modification to the Silver Member within thirty (30) days of the delivery of the Call Exchange Notice) to make the Silver Cash Consideration Percentage equal to 50% and the Silver OP Unit Consideration Percentage equal to 50% (for example, if the Silver Member elects, pursuant to such Call Exchange Notice, to pay cash as consideration for all of such Exchange and the Titanium Family Designee exercises its option to modify such election as set forth in this sentence, the Exchanging Members shall receive 50% of the consideration for such Exchange in cash and 50% of the consideration for such Exchange in Silver OP Units); provided, further, that the Silver Member shall only be permitted to elect to deliver Silver OP Units, and the Titanium Family Designee shall only be permitted to modify the Per Unit Consideration Election, in each case if the Silver OP Units to be received in such Exchange are redeemable or exchangeable for Equity Shares on a one-for-one basis and the Equity Shares are then listed for trading on a national securities exchange. (iii) On or prior to each Exchange Date, Silver Parent and Silver OP shall contribute or cause to be contributed to the Company, as a capital contribution, sufficient Silver OP Units or cash to satisfy all of the Company’s obligations set forth in this Section 8.4, and the Company shall provide as consideration for such contribution a number of Common Units equal to the number of Common Units subject to the applicable Exchange in respect of which such contribution was made; provided that, in the case of an election to receive Silver OP Units, Silver OP may, in its discretion, on or before the Exchange Date, by so notifying the Exchanging Member in writing no later than the Exchange Date, elect to purchase the Common Units being Exchanged by such Exchanging Member from the Exchanging Member in exchange for Silver OP Units in the amount of the Per Unit Consideration Election for each Common Unit, and if Silver OP so elects, the Company no longer has any obligations pursuant to this Section 8.4 with respect to such Exchange. The parties hereto acknowledge and agree that any Exchange for Silver OP Units shall be treated as a contribution by the Exchanging Member of Common Units to Silver OP in exchange for Silver OP Units within the meaning of Section 721 of the Code.