Common use of Exchange Rights Clause in Contracts

Exchange Rights. (a) The Series B Preferred Units will be exchangeable in whole but not in part unless expressly otherwise provided herein at any time on or after November 15, 2008, at the option of the holders of 51% of all outstanding Series B Preferred Units, for authorized but previously unissued Gables Trust Series B Preferred Shares at an exchange rate of one Gables Trust Series B Preferred Share from the General Partner, Gables Trust, the Partnership, or any combination of them for one Series B Preferred Unit, subject to adjustment as described below, provided that the Series B Preferred Units will become exchangeable at any time, in whole but not in part unless expressly otherwise provided herein, at the option of the holders of 51% of all outstanding Series B Preferred Units for Gables Trust Series B Preferred Shares (x) if at any time full distributions shall not have been timely made on any Series B Preferred Unit with respect to six (6) prior quarterly distribution periods, whether or not consecutive, provided, however, that a distribution in respect of Series B Preferred Units shall be considered timely made if made within two (2) Business Days after the applicable Series B Distribution Payment Date, or (y) upon receipt by a holder or holders of Series B Preferred Units of (A) notice from the General Partner that the General Partner has taken the position that the Partnership is, or upon the consummation of an identified event in the immediate future will be, a "Publicly Traded Partnership" (a "PTP") within the meaning of Section 7704 of the Code and (B) an opinion rendered by independent counsel familiar with such matters addressed to a holder or holders of Series B Preferred Units, that the Partnership is or likely is, or upon the occurrence of a defined event in the immediate future will be or likely will be, a PTP. In addition, the Series B Preferred Units may be exchanged for Gables Trust Series B Preferred Shares, in whole but not in part at the option of the holders of 51% of all outstanding Series B Preferred Units after November 15, 2001 and prior to November 15, 2008 if such holders of Series B Preferred Units deliver to the General Partner either (A) a private letter ruling addressed to such holder of Series B Preferred Units or (B) an opinion of independent counsel based on the enactment of temporary or final Treasury Regulations or the publication of a Revenue Ruling, in either case to the effect that such exchange of the Series B Preferred Units at such earlier time would not cause the Series B Preferred Units to be considered "stock and securities" within the meaning of Section 351(e) of the Code for purposes of determining whether the holder of such Series B Preferred Units is an "investment company" under Section 721(b) of the Code if an exchange is permitted at such earlier date. Furthermore, the Series B Preferred Units, if Contributor so determines, may be exchanged in whole but not in part (regardless of whether held by Contributor) for Gables Trust Series B Preferred Shares if Contributor concludes based on results or projected results that there exists (in the reasonable judgment of Contributor) an imminent and substantial risk that the Contributor's interest in the Partnership represents or will exceed the 19.5% Limit.

Exchange Rights. (a) The Series B Preferred Units will be exchangeable in whole but not in part unless expressly otherwise provided herein at any time on or after November 15, 2008, at the option of the holders of 51% of all outstanding Series B Preferred Units, for authorized but previously unissued Gables Trust Series B Preferred Shares at an exchange rate of one Gables Trust Series B Preferred Share from the General Partner, Gables Trust, the Partnership, or any combination of them for one Series B Preferred Unit, subject to adjustment as described below, provided that the Series B Preferred Units will become exchangeable at any time, in whole but not in part unless expressly otherwise provided herein, at the option of the holders of 51% of all outstanding Series B Preferred Units for Gables Trust Series B Preferred Shares (x) if at any time full distributions shall not have been timely made on any Series B Preferred Unit with respect to six (6) prior quarterly distribution periods, whether or not consecutive, provided, however, that a distribution in respect of Series B Preferred Units shall be considered timely made if made within two (2) Business Days after the applicable Series B Distribution Payment Date, or (y) upon receipt by a holder or holders of Series B Preferred Units of (A) notice from the General Partner that the General Partner has taken the position that the Partnership is, or upon the consummation of an identified event in the immediate future will be, a "Publicly Traded Partnership" (a "PTP") within the meaning of Section 7704 of the Code and (B) an opinion rendered by independent counsel familiar with such matters addressed to a holder or holders of Series B Preferred Units, that the Partnership is or likely is, or upon the occurrence of a defined event in the immediate future will be or likely will be, a PTP. In addition, the Series B Preferred Units may be exchanged for Gables Trust Series B Preferred Shares, in whole but not in part at the option of the holders of 51% of all outstanding Series B Preferred Units after November 15, 2001 and prior to November 15, 2008 if such holders of Series B Preferred Units deliver to the General Partner either (A) a private letter ruling addressed to such holder of Series B Preferred Units or (B) an opinion of independent counsel based on the enactment of temporary or final Treasury Regulations or the publication of a Revenue Ruling, in either case to the effect that such exchange of the Series B Preferred Units at such earlier time would not cause the Series B Preferred Units to be considered "stock and securities" within the meaning of Section 351(e) of the Code for purposes of determining whether the holder of such Series B Preferred Units is an "investment company" under Section 721(b) of the Code if an exchange is permitted at such earlier date. Furthermore, the Series B Preferred Units, if Contributor so determines, may be exchanged in whole but not in part (regardless of whether held by Contributor) for Gables Trust Series B Preferred Shares if Contributor concludes based on results or projected results that there exists (in the reasonable judgment of Contributor) an imminent and substantial risk that the Contributor's interest in the Partnership represents or will exceed the 19.5% Limit. (b) Notwithstanding anything to the contrary set forth in Section 8(a), if an Exchange Notice (as defined herein) has been delivered as provided below, then the General Partner, Gables Trust, the Partnership, or any combination of them may, at their option, within ten (10) Business Days after receipt of the Exchange Notice, elect to cause the Partnership to redeem all or a portion of the outstanding Series B Preferred Units for cash in an amount equal to the Capital Account balance of the holders of Series B Preferred Units and all accumulated, accrued and unpaid distributions thereon to the date of redemption. If the foregoing election is to redeem fewer than all of the outstanding Series B Preferred Units, the number of Series B Preferred Units held by each holder to be redeemed shall equal such holder's pro rata share (based on the percentage of the aggregate number of outstanding Series B Preferred Units that the total number of Series B Preferred Units held by such holder represents) of the aggregate number of Series B Preferred Units being redeemed. (c) In the event an exchange of any Series B Preferred Units pursuant to Section 8(a) would violate the provisions on ownership limitation of the Gables Trust set forth in Article 5 of the Declaration of Trust, each holder of Series B Preferred Units shall be entitled to exchange, pursuant to the provisions of Section 8(d), a number of Series B Preferred Units which would comply with the provisions on such ownership limitation of the Gables Trust ("Allowable Units") and any Series B Preferred Units not so exchanged (the "Excess Units") shall be redeemed by the Partnership for cash in an amount equal to the Capital Account balance of the holders of Series B Preferred Units and all accumulated, accrued and unpaid distributions thereon to the date of redemption attributable to such Excess Units; provided, however, that the Partnership shall have no obligation to redeem Excess Units for cash at such time as the terms and provisions of any agreement of the Partnership, including any debt instrument or other agreement relating to its indebtedness, prohibits such redemption or provides that such redemption would constitute a breach thereof or a default thereunder, or if such redemption shall be restricted or prohibited by law; and provided, further, that the Partnership shall have no obligation to redeem Excess Units for cash as provided above and the holder shall continue to retain Excess Units after the exchange of Allowable Units for Gables Trust Series B Preferred Shares if the requested exchange of Series B Preferred Units and related issuance of Gables Trust Series B Preferred Shares to such holder (whether the Contributor or a transferee, successor or assign of Contributor) would cause Gables Trust to fail to satisfy the requirements of Section 856(a)(6) of the Code. (d) Any exchange of Series B Preferred Units for Gables Trust Series B Preferred shares shall be exercised pursuant to a notice of exchange (the "Exchange Notice") delivered to the General Partner and Gables Trust by the holders of at least 51% of the outstanding Series B Preferred Units (or by Contributor in the case of an exchange pursuant to the last sentence of Section 8(a) hereof) by (a) fax and (b) certified mail postage prepaid. The General Partner, Gables Trust and the Partnership, or any combination of them may effect any exchange of Series B Preferred Units, or cause the Partnership to redeem any portion of the Series B Preferred Units for cash pursuant to Section 8(b) or redeem Excess Units pursuant to Section 8(c), by delivering to each holder of record of Series B Preferred Units, within ten (10) Business Days following receipt of the Exchange Notice, (i) if the General Partner elects to cause the Partnership to acquire any of the Series B Preferred Units then outstanding, (1) certificates representing the Preferred Shares being issued in exchange for the Series B Preferred Units of such holder being exchanged and (2) a written notice stating (A) the redemption date, which may be the date of such written notice or any other date which is not later than sixty (60) days following the receipt of the Exchange Notice, (B) the redemption price, and (C) that distributions on the Series B Preferred Units will cease to accrue on such redemption date, or (ii) if the General Partner elects to cause the Partnership to redeem all of the Series B Preferred Units then outstanding in exchange for cash, a Redemption Notice. Series B Preferred Units shall be deemed canceled (and any corresponding Partnership Interest represented thereby deemed terminated) simultaneously with the delivery of shares of Gables Trust Series B Preferred Shares (with respect to Series B Preferred Units exchanged) or simultaneously with the redemption date (with respect to Series B Preferred Units redeemed). Notwithstanding anything to the contrary contained herein, any and all Series B Preferred Units to be exchanged for Gables Trust Series B Preferred Stock pursuant to this Section 8 shall be so exchanged in a single transaction at one time. As a condition to exchange, the Gables Trust may require the holders of Series B Preferred Units to make such representations as may be reasonably necessary for the Gables Trust to establish that the issuance of Gables Trust Series B Preferred Shares pursuant to the exchange shall not be required to be registered under the Securities Act of 1933, as amended, or any state securities laws. Any Gables Trust Series B Preferred Shares issued pursuant to this Section 8 shall be delivered as shares which are duly authorized, validly issued, fully paid and nonassessable, free of any pledge, lien, encumbrance or restriction other than those provided in the Declaration of Trust, the Securities Act and relevant state securities or blue sky laws. The certificates representing the Gables Trust Series B Preferred Shares issued upon exchange of the Series B Preferred Units shall contain the following legend: THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR (B) IF THE CORPORATION HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL FOR THE HOLDER OF THE SHARES REPRESENTED HEREBY, OR OTHER EVIDENCE SATISFACTORY TO THE CORPORATION, THAT SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE ACT AND THE RULES AND REGULATIONS THEREUNDER.

Exchange Rights. (ai) The Unless called for redemption as described above under "Optional Redemption," Series B D Preferred Units will be exchangeable in whole but not or in part unless expressly otherwise provided herein at any time anytime on or after November 15, 2008the tenth anniversary of the Issue Date, at the option of the holders of 51% of all outstanding Series B Preferred Unitsthereof, for authorized but previously unissued Gables Trust shares of the Company's Series B D Preferred Shares Stock at an exchange price of $25.00 per share of Series D Preferred Stock (equivalent to an exchange rate of one Gables Trust share of Series B D Preferred Share from the General Partner, Gables Trust, the Partnership, or any combination of them Stock for one each Series B D Preferred Unit), subject to adjustment as described belowbelow (the "Exchange Price"), provided that the Series B D Preferred Units will become immediately exchangeable at any time, time in whole but not or in part unless expressly otherwise provided herein, at the option of the holders of 51% of all outstanding for Series B D Preferred Units for Gables Trust Series B Preferred Shares (xy) if at any time full distributions shall not have been timely made on any outstanding Series B D Preferred Unit Units with respect to any six (6) prior quarterly distribution periods, whether or not consecutive, provided, however, that a distribution in respect of Series B D Preferred Units shall be considered timely made if made within two (2) Business Days after the applicable Series B Distribution Payment Date, Date if at the time of such payment there shall not be any prior quarterly distribution periods in respect of which full distributions were not timely made or (yz) upon receipt by a holder or holders of Series B D Preferred Units of (A) notice from the General Partner that the General Partner or a subsidiary of the General Partner has taken the position that the Partnership is, or upon the consummation occurrence of an identified a defined event in the immediate future will be, be a "Publicly Traded Partnershippublicly traded partnership" (a "PTP") within the meaning of Section 7704 of the Internal Revenue Code of 1986, as amended, and (B) an opinion rendered by independent counsel to the General Partner familiar with such matters matter (or, in the event of a conflict, other reputable independent counsel designated by such General Partner counsel), addressed to a holder or holders of Series B D Preferred Units, that the Partnership is is, or likely is, or upon the occurrence of a defined event in the immediate future will be or likely will be, a PTP. In addition, the Series B D Preferred Units may be exchanged for Gables Trust Series B D Preferred Shares, Stock in whole but not or in part at the option of the holders of 51% of all outstanding Series B Preferred Units after November 15, 2001 and any holder prior to November 15, 2008 the tenth anniversary of the Issue Date and after the third anniversary thereof if such holders of Series B Preferred Units deliver holder delivers to the General Partner Partnership and the Company either (Ai) a private letter ruling addressed to such a holder of Series B D Preferred Units or (Bii) an opinion of independent counsel reasonably acceptable to the Company based on the enactment of temporary or final Treasury Regulations or the publication of a Revenue Ruling, in either case to the effect that such an exchange of the Series B D Preferred Units at such earlier time would not cause the Series B D Preferred Units to be considered "stock and securities" within the meaning of Section section 351(e) of the Code for purposes of determining whether the holder of such Series B D Preferred Units is an "investment company" under Section section 721(b) of the Code if an exchange is permitted at such earlier date. FurthermoreThe Series D Preferred Units will become exchangeable in whole or in part at the option of the holders of the Series D Preferred Units if, at any time (i) the Partnership is advised by independent counsel that, based on the assets and income of the Partnership for a taxable year after 1999, the Partnership would not satisfy the income and assets tests of Section 856 of the Code for such taxable year if the Partnership were a real estate investment trust within the meaning of the Code; or (ii) any holder of the Series B D Preferred UnitsUnits shall deliver to the Partnership and the Company an opinion of independent counsel reasonably acceptable to the Company to the effect that, if Contributor so determines, may be exchanged in whole but not in part (regardless of whether held by Contributor) for Gables Trust Series B Preferred Shares if Contributor concludes based on results or projected results the assets and income of the Partnership for a taxable year after 1999, the Partnership would not satisfy the income and assets tests of Section 856 of the Code for such taxable year if the Partnership were a real estate investment trust within the meaning of the Code and that there exists (in the reasonable judgment of Contributor) an imminent and substantial such failure would create a meaningful risk that a holder of the Contributor's interest in Series D Preferred Units would fail to maintain its qualification as a real estate investment trust within the Partnership represents or will exceed meaning of the 19.5% LimitCode.

Exchange Rights. (ai) The Unless called for redemption as described above under “Optional Redemption,” Series B Preferred Units will be exchangeable in whole but not or in part unless expressly otherwise provided herein at any time anytime on or after November 15January 1, 20082014, at the option of the holders of 51% of all outstanding Series B Preferred Unitsthereof, for authorized but previously unissued Gables Trust shares of the Company’s Series B Preferred Shares Stock at an exchange price of $50.00 per share of Series B Preferred Stock (equivalent to an exchange rate of one Gables Trust share of Series B Preferred Share from the General Partner, Gables Trust, the Partnership, or any combination of them Stock for one each Series B Preferred Unit), subject to adjustment as described belowbelow (the “Exchange Price”), provided that the Series B Preferred Units will become immediately exchangeable at any time, time in whole but not or in part unless expressly otherwise provided herein, at the option of the holders of 51% of all outstanding for Series B Preferred Units for Gables Trust Series B Preferred Shares (xy) if at any time full distributions shall not have been timely made on any outstanding Series B Preferred Unit Units with respect to any six (6) prior quarterly distribution periods, whether or not consecutive, provided, however, that a distribution in respect of Series B Preferred Units shall be considered timely made if made within two (2) Business Days after the applicable Series B Distribution Payment Date, Date if at the time of such payment there shall not be any prior quarterly distribution periods in respect of which full distributions were not timely made or (yz) upon receipt by a holder or holders of Series B Preferred Units of (A) notice from the General Partner that the General Partner or a subsidiary of the General Partner has taken the position that the Partnership is, or upon the consummation occurrence of an identified a defined event in the immediate future will be, be a "Publicly Traded Partnership" “publicly traded partnership” (a "“PTP"”) within the meaning of Section 7704 of the Internal Revenue Code of 1986, as amended, and (B) an opinion rendered by independent counsel to the General Partner familiar with such matters matter (or, in the event of a conflict, other reputable independent counsel designated by such General Partner counsel), addressed to a holder or holders of Series B Preferred Units, that the Partnership is is, or likely is, or upon the occurrence of a defined event in the immediate future will be or likely will be, a PTP. In addition, the Series B Preferred Units may be exchanged for Gables Trust Series B Preferred Shares, Stock in whole but not or in part at the option of the holders of 51% of all outstanding Series B Preferred Units after November 15, 2001 and any holder prior to November 15January 1, 2008 2014 if such holders of Series B Preferred Units deliver holder delivers to the General Partner Partnership and the Company either (Ai) a private letter ruling addressed to such a holder of Series B Preferred Units or (Bii) an opinion of independent counsel reasonably acceptable to the Company based on the enactment of temporary or final Treasury Regulations or the publication of a Revenue Ruling, in either case to the effect that such an exchange of the Series B Preferred Units at such earlier time would not cause the Series B Preferred Units to be considered "“stock and securities" ” within the meaning of Section section 351(e) of the Code for purposes of determining whether the holder of such Series B Preferred Units is an "“investment company" ” under Section section 721(b) of the Code if an exchange is permitted at such earlier date. Furthermore, the Series B Preferred Units, if Contributor so determines, Units may be exchanged in whole but not or in part (regardless of whether held by Contributor) for Gables Trust Series B Preferred Shares Stock at any time, if Contributor concludes both (a) based on results or projected results that results, there exists (exists, in the reasonable judgment of Contributor) the holder an imminent and substantial risk that the Contributor's such holder’s interest in the Partnership represents or will exceed the represent more than 19.5% Limitof the total profits or capital interests in the Partnership for a taxable year, and (b) the holder thereof delivers to the Company an opinion of nationally recognized independent counsel to the effect that there is a substantial risk that such holder’s interest in the Partnership represents or will represent more than 19.5% of the total profits or capital interests in the Partnership (determined in accordance with Treasury Regulations Section 1.731-2(e)(4)) for a taxable year; for purposes of this provision, as of April 20, 1998 and giving effect to the receipt by the holder of Series B Preferred Units of 400,000 Series B Preferred Units as of such date, it is deemed that as of such date there was not a substantial risk that such holder’s interest in the Partnership will represent more than such 19.5% and such a substantial risk shall be deemed to occur only if there is a material increase, from the holder’s level as of such date, in the percentage of total profits or capital interests in the Partnership represented by the holder’s interest. For purposes of the exchange rights granted hereunder, with regard to all Series B Preferred Units issued pursuant to the Contribution Agreement dated February 6, 1998 and all Series B Preferred Units issued pursuant to the Contribution Agreement dated April 20, 1998, the Issue Date shall be deemed to be February 6, 1998. The Series B Preferred Units will become exchangeable at any time in whole or in part at the option of the holders of the Series B Preferred Units if, at any time (i) the Partnership is advised by independent counsel that, based on the assets and income of the Partnership for a taxable year after 1999, the Partnership would not satisfy the income and assets tests of Section 856 of the Code for such taxable year if the Partnership were a real estate investment trust within the meaning of the Code; or (ii) any holder of the Series B Preferred Units shall deliver to the Partnership and the General Partner an opinion of independent counsel reasonably acceptable to the General Partner to the effect that, based on the assets and income of the Partnership for a taxable year after 1999, the Partnership would not satisfy the income and assets tests of Section 856 of the Code for such taxable year if the Partnership were a real estate investment trust within the meaning of the Code and that such failure would create a meaningful risk that a holder of the Series B Preferred Units would fail to maintain qualification as a real estate investment trust within the meaning of the Code.

Exchange Rights. (a) The Series B Preferred Units will be exchangeable in whole but not in part unless expressly otherwise provided herein Subject to the provisions of the Indenture, the holder of this Security has the right, at his option, at any time or from time to time on or after November 156, 20081997 until and including, but not after the close of business on, the date of final maturity of this Security (except that, in case this Security or a portion hereof shall be called for redemption and the Company shall not thereafter default in making due provision for the payment of the redemption price, such right shall terminate with respect to this Security or such portion hereof at the close of business on the last business day preceding the date fixed for redemption or, in case this Security or a portion hereof shall be called for redemption in accordance with Section 10.11 of the Indenture and the Company shall not thereafter default in making due provision for the payment of the redemption price, such right shall terminate with respect to this Security or such portion hereof at the close of business on the last business day preceding the fifteenth day after the mailing of the notice of redemption), to exchange the principal of this Security, or any portion thereof which is $1,000 or a multiple of $1,000, into fully paid and non-assessable shares of Vencor Common Stock, as said shares shall be constituted at the date of exchange (or such other securities or property or cash as shall be added to such Vencor Common Shares or as such Vencor Common Shares shall have been changed into as provided in the Indenture), at the option Exchange Rate of 25.9403 shares of Vencor Common Stock (or such other securities, property or cash) for each $1,000 principal amount of the holders Securities (the "Exchange Rate") or at the adjusted Exchange Rate in effect at the date of 51% exchange if an adjustment has been made, determined as provided in the Indenture, upon surrender of all outstanding Series B Preferred Unitsthis Security to the Company at the office or agency of the Company maintained for the purpose in the Borough of Manhattan, The City of New York, together with a fully executed notice substantially in the form entitled "Exchange Notice" appearing below that the holder elects so to exchange this Security (or any portion hereof which is an integral multiple of $1,000); provided that the Company may, in lieu of delivering shares of Vencor Common Stock in exchange for authorized but previously unissued Gables Trust Series B Preferred Shares this Security, elect to pay the holder hereof an amount in cash equal to the Market Price (as of the date of receipt at such office or agency of such notice of exchange) as defined in the Indenture of such shares of Vencor Common Stock into which this Security (or any portion hereof which is an integral multiple of $1,000 which the holder elects to exchange) is exchangeable, plus any securities, property or cash theretofore apportioned to such shares of Vencor Common Stock, subject to certain conditions as more fully described in the Indenture. Except as expressly provided in the Indenture, no payment or adjustment shall be made on account of interest accrued on this Security (or portion thereof) so exchanged or on account of any dividend or distribution on any such shares of common stock of Vencor Power Company issued upon exchange. If so required by the Company or the Trustee, this Security, upon surrender for exchange rate as aforesaid, shall be duly endorsed by, or be accompanied by instruments of one Gables Trust Series B Preferred Share from transfer, in form satisfactory to the General PartnerCompany, Gables Trustduly executed by, the Partnership, holder or any combination of them for one Series B Preferred Unit, by his duly authorized attorney. The Exchange Rate from time to time in effect is subject to adjustment as described below, provided that in the Series B Preferred Units will become exchangeable at any time, Indenture. No fractional interest in whole but not in part unless expressly otherwise provided herein, at the option of the holders of 51% of all outstanding Series B Preferred Units for Gables Trust Series B Preferred Vencor Common Shares (xor other securities) if at will be issued on exchange, but an adjustment in cash will be made for any time full distributions shall not have been timely made on any Series B Preferred Unit with respect to six (6) prior quarterly distribution periods, whether or not consecutive, provided, however, that a distribution in respect of Series B Preferred Units shall be considered timely made if made within two (2) Business Days after the applicable Series B Distribution Payment Date, or (y) upon receipt by a holder or holders of Series B Preferred Units of (A) notice from the General Partner that the General Partner has taken the position that the Partnership is, or upon the consummation of an identified event fractional interest as provided in the immediate future will be, a "Publicly Traded Partnership" (a "PTP") within the meaning of Section 7704 of the Code and (B) an opinion rendered by independent counsel familiar with such matters addressed to a holder or holders of Series B Preferred Units, that the Partnership is or likely is, or upon the occurrence of a defined event in the immediate future will be or likely will be, a PTP. In addition, the Series B Preferred Units may be exchanged for Gables Trust Series B Preferred Shares, in whole but not in part at the option of the holders of 51% of all outstanding Series B Preferred Units after November 15, 2001 and prior to November 15, 2008 if such holders of Series B Preferred Units deliver to the General Partner either (A) a private letter ruling addressed to such holder of Series B Preferred Units or (B) an opinion of independent counsel based on the enactment of temporary or final Treasury Regulations or the publication of a Revenue Ruling, in either case to the effect that such exchange of the Series B Preferred Units at such earlier time would not cause the Series B Preferred Units to be considered "stock and securities" within the meaning of Section 351(e) of the Code for purposes of determining whether the holder of such Series B Preferred Units is an "investment company" under Section 721(b) of the Code if an exchange is permitted at such earlier date. Furthermore, the Series B Preferred Units, if Contributor so determines, may be exchanged in whole but not in part (regardless of whether held by Contributor) for Gables Trust Series B Preferred Shares if Contributor concludes based on results or projected results that there exists (in the reasonable judgment of Contributor) an imminent and substantial risk that the Contributor's interest in the Partnership represents or will exceed the 19.5% LimitIndenture.

Exchange Rights. (ai) The Unless called for redemption as described above under "Optional Redemption," Series B C Preferred Units will be exchangeable in whole but not or in part unless expressly otherwise provided herein at any time anytime on or after November 15, 2008the tenth anniversary of the Issue Date, at the option of the holders of 51% of all outstanding Series B Preferred Unitsthereof, for authorized but previously unissued Gables Trust shares of the Company's Series B C Preferred Shares Stock at an exchange price of $50.00 per share of Series C Preferred Stock (equivalent to an exchange rate of one Gables Trust share of Series B C Preferred Share from the General Partner, Gables Trust, the Partnership, or any combination of them Stock for one each Series B C Preferred Unit), subject to adjustment as described belowbelow (the "Exchange Price"), provided that the Series B C Preferred Units will become immediately exchangeable at any time, time in whole but not or in part unless expressly otherwise provided herein, at the option of the holders of 51% of all outstanding for Series B C Preferred Units for Gables Trust Series B Preferred Shares (xy) if at any time full distributions shall not have been timely made on any outstanding Series B C Preferred Unit Units with respect to any six (6) prior quarterly distribution periods, whether or not consecutive, provided, however, such that a distributions for such six (6) distribution periods have not been fully paid and are outstanding in respect of Series B Preferred Units shall be considered timely made if made within two (2) Business Days after whole or in part at the applicable Series B Distribution Payment Date, same time or (yz) upon receipt by a holder or holders of Series B C Preferred Units of (A) notice from the General Partner that the General Partner or a subsidiary of the General Partner has taken the position that the Partnership is, or upon the consummation occurrence of an identified a defined event in the immediate future will be, be a "Publicly Traded Partnershippublicly traded partnership" (a "PTP") within the meaning of Section 7704 of the Internal Revenue Code of 1986, as amended, and (B) an opinion rendered by independent counsel to the General Partner familiar with such matters matter (or, in the event of a conflict, other reputable independent counsel designated by such General Partner counsel), addressed to a holder or holders of Series B C Preferred Units, that the Partnership is is, or likely is, or upon the occurrence of a defined event in the immediate future will be or likely will be, a PTP. In addition, the Series B C Preferred Units may be exchanged for Gables Trust Series B C Preferred Shares, Stock in whole but not or in part at the option of the holders of 51% of all outstanding Series B Preferred Units after November 15, 2001 and any holder prior to November 15, 2008 the tenth anniversary of the Issue Date and after the third anniversary thereof if such holders of Series B Preferred Units deliver holder delivers to the General Partner Partnership and the Company either (Ai) a private letter ruling addressed to such a holder of Series B C Preferred Units or (Bii) an opinion of independent counsel reasonably acceptable to the Company based on the enactment of temporary or final Treasury Regulations or the publication of a Revenue Ruling, in either case to the effect that such an exchange of the Series B C Preferred Units at such earlier time would not cause the Series B C Preferred Units to be considered "stock and securities" within the meaning of Section section 351(e) of the Code for purposes of determining whether the holder of such Series B C Preferred Units is an "investment company" under Section section 721(b) of the Code if an exchange is permitted at such earlier date. FurthermoreThe Series C Preferred Units will become exchangeable in whole or in part at the option of the holders of the Series C Preferred Units if (i) the Partnership is advised by independent counsel that, based on the assets and income of the Partnership for a taxable year after 1998, the Partnership would not satisfy the income and assets tests of Section 856 of the Code for such taxable year if the Partnership were a real estate investment trust within the meaning of the Code; or (ii) any holder of the Series B C Preferred UnitsUnits shall deliver to the Partnership and the Company an opinion of independent counsel reasonably acceptable to the Company to the effect that, if Contributor so determines, may be exchanged in whole but not in part (regardless of whether held by Contributor) for Gables Trust Series B Preferred Shares if Contributor concludes based on results or projected results the assets and income of the Partnership for a taxable year after 1998, the Partnership would not satisfy the income and assets tests of Section 856 of the Code for such taxable year if the Partnership were a real estate investment trust within the meaning of the Code and that there exists (in the reasonable judgment of Contributor) an imminent and substantial such failure would create a meaningful risk that a holder of the Contributor's interest in the Partnership represents or will exceed the 19.5% LimitSeries C Preferred Units would fail to maintain its qualification as a real estate investment trust.