Common use of Equivalent Securities Clause in Contracts

Equivalent Securities. (i) Each holder of Class A-II Units shall be entitled to elect to receive in consideration for its Capital Contribution pursuant to Section 4.1(d), in lieu of Class A-II Units, a debt instrument issued by the Partnership having substantially equivalent rights and obligations as Class A-II Units (an “Equivalent Security”). (ii) Each Equivalent Security shall (A) be evidenced by a note in form and substance reasonably acceptable to the Board of Directors, (B) be fully transferrable subject to the same terms and conditions as Class A-II Units (including Sections 3.4, 3.8, 3.9, 3.10 and 3.11), (C) be issued at a face value equivalent to the Class A Unit Price at which Class A Units are being issued to other Class A Limited Partners in connection with their applicable Capital Contributions at such time, (D) have a coupon tied to Class A-II Unit distributions, (E) have restrictions against prepayment or redemption except to the extent of any redemption and/or buyback of the Class A Units, (F) be unsecured and (G) contain such other terms and conditions as equivalent as possible as Class A-II Units. The Partnership and each of the Partners agree to treat the Equivalent Securities as equity for all federal, state and local income tax purposes. (iii) In addition to the foregoing, each Equivalent Security shall be convertible into one Class A-II Unit at any time at the election of the holder thereof and shall automatically convert to one Class A-II Unit immediately prior to a Liquidity Event, Tag-Along Sale, Drag-Along Sale, any liquidation or dissolution of the Partnership and as otherwise specified herein. Upon conversion of an Equivalent Security, any amounts paid prior to conversion as interest on such Equivalent Security shall be deemed to be amounts paid as distributions on the applicable converted Class A-II Unit for purposes of all calculations hereunder. (iv) In the event of a Bankruptcy of the Partnership, any subsidiary of the Partnership or the General Partner, (A) the Partnership shall have the option to convert all outstanding Equivalent Securities to Class A-II Units prior to the filing of such Bankruptcy by delivering written notice of such conversion to the Class A-II Representative (a “Conversion Notice”) for delivery to the holders of Class A-II Units and (B) if a Conversion Notice is not delivered to the Class A-II Representative prior to the filing of any Bankruptcy or is delivered but deemed ineffective by a court of competent jurisdiction, then immediately prior thereto, all then-outstanding Class A Units and Equivalent Securities shall be deemed to be reallocated among the holders of Class A Units such that each such holder holds, after such reallocation, its Class A Sharing Percentage of Class A Units and a proportionate number of Equivalent Securities equal to its Class A Sharing Percentage. Notwithstanding anything herein to the contrary, the Partnership shall not be required to provide any representations, warranties, covenants (other than a covenant to convert such Equivalent Securities into Class A-II Units as provided herein) or other agreements that are not equivalent to those being provided to other Limited Partners receiving Class A Units at the time of such issuance.