Common use of Exceptions and Cooperation Clause in Contracts

Exceptions and Cooperation. (i) The Managing Member, in its sole and absolute discretion, may exempt (prospectively or retroactively) a Person from the limits set forth in Section 15.15(a)(i)(A), or may establish or increase an Excepted Holder Limit for such Person, if the Managing Member determines, based on such representations and undertakings from such Person to the extent required by the Managing Member and as are reasonably necessary to ascertain that such exemption will not cause such Person to violate Section 15.15(a)(i)(B). (ii) The Members, the Managing Member and the Company agree that, in the event any Member would like to modify its Excepted Holder Limit, the Members, the Managing Member and the Company shall reasonably cooperate to amend such Excepted Holder Limit; provided, however, that such cooperation shall not require the Company, the Managing Member or any Member to agree to allow any REIT Subsidiary to accrue gross income in a taxable year that does not qualify under Section 856(c)(2) of the Code in excess of 0.5% of the REIT Subsidiary’s gross income for such taxable year or take any action that could otherwise jeopardize the REIT Subsidiary’s status as a REIT. (iii) Subject to Section 15.15(a)(i)(B) and this Section 15.15(g)(iii), the Managing Member may from time to time increase (or decrease) the REIT Subsidiary Ownership Limit for one or more Persons and decrease (or increase) the REIT Subsidiary Ownership Limit for all other Persons. No decreased REIT Subsidiary Ownership Limit will be effective for any Person whose percentage of capital or profits interest in the Company is in excess of such decreased REIT Subsidiary Ownership Limit until such time as such Person’s percentage of capital or profits interest in the Company equals or falls below the decreased REIT Subsidiary Ownership Limit; provided, however, that any further acquisition of LLC Interests by any such Person (other than a Person for whom an exemption has been granted pursuant to Section 15.15(g)(i) or an Excepted Holder) in excess of the LLC Interests owned by such Person on the date the decreased REIT Subsidiary Ownership Limit became effective will be in violation of the REIT Subsidiary Ownership Limit. No increase to the REIT Subsidiary Ownership Limit may be approved if the new REIT Subsidiary Ownership Limit (taking into account any then-existing Excepted Holder Limits to the extent appropriate as determined by the Managing Member) would allow five or fewer Individuals to Beneficially Own, in the aggregate, more than 49.0% of the capital or profits interests in the Company.

Exceptions and Cooperation. (i) The Managing MemberGeneral Partner, in its sole and absolute discretion, may exempt (prospectively or retroactively) a Person from the limits set forth in Section 15.15(a)(i)(A15.16(a)(i)(A), or may establish or increase an Excepted Holder Limit for such Person, if the Managing Member General Partner determines, based on such representations and undertakings from such Person to the extent required by the Managing Member General Partner and as are reasonably necessary to ascertain that such exemption will not cause such Person to violate Section 15.15(a)(i)(B15.16(a)(i)(B). (ii) The MembersPartners, the Managing Member General Partner and the Company Partnership agree that, in the event any Member Partner would like to modify its Excepted Holder Limit, the MembersPartners, the Managing Member General Partner and the Company Partnership shall reasonably cooperate to amend such Excepted Holder Limit; provided, however, that such cooperation shall not require the CompanyPartnership, the Managing Member General Partner or any Member Partner to agree to allow any REIT Subsidiary to accrue gross income in a taxable year that does not qualify under Section 856(c)(2) of the Code in excess of 0.5% of the REIT Subsidiary’s gross income for such taxable year or take any action that could otherwise jeopardize the REIT Subsidiary’s status as a REIT. (iii) Subject to Section 15.15(a)(i)(B15.16(a)(i)(B) and this Section 15.15(g)(iii15.16(g)(iii), the Managing Member General Partner may from time to time increase (or decrease) the REIT Subsidiary Ownership Limit for one or more Persons and decrease (or increase) the REIT Subsidiary Ownership Limit for all other Persons. No decreased REIT Subsidiary Ownership Limit will be effective for any Person whose percentage of capital or profits interest in the Company Partnership is in excess of such decreased REIT Subsidiary Ownership Limit until such time as such Person’s percentage of capital or profits interest in the Company Partnership equals or falls below the decreased REIT Subsidiary Ownership Limit; provided, however, that any further acquisition of LLC Partnership Interests by any such Person (other than a Person for whom an exemption has been granted pursuant to Section 15.15(g)(i15.16(g)(i) or an Excepted Holder) in excess of the LLC Partnership Interests owned by such Person on the date the decreased REIT Subsidiary Ownership Limit became effective will be in violation of the REIT Subsidiary Ownership Limit. No increase to the REIT Subsidiary Ownership Limit may be approved if the new REIT Subsidiary Ownership Limit (taking into account any then-existing Excepted Holder Limits to the extent appropriate as determined by the Managing MemberGeneral Partner) would allow five or fewer Individuals to Beneficially Own, in the aggregate, more than 49.0% of the capital or profits interests in the CompanyPartnership.

Exceptions and Cooperation. (ia) The Managing MemberPartnership, in its sole and absolute discretion, may exempt (prospectively or retroactively) a Person from the limits set forth in Section 15.15(a)(i)(A10.2(a)(i), or may establish or increase an Excepted Holder Limit for such Person, if the Managing Member Partnership determines, based on such representations and undertakings from such Person to the extent required by the Managing Member Partnership and as are reasonably necessary to ascertain that such exemption will not cause such Person to violate Section 15.15(a)(i)(B10.2(a)(ii). (iib) The MembersPartners and the Partnership agree that (a) subject to the continued accuracy of the representations set forth in Section 8.1(w) with respect to Investor, Investor and each member of the Investor Group shall be an Excepted Holder and be subject to an Excepted Holder Limit, in the aggregate, of forty-five percent (45%), and (b) subject to the continued accuracy of the representations set forth in Section 8.1(w) with respect to Xxxxxx, Xxxxxx and each member of the Xxxxxx Group shall be an Excepted Holder and be subject to an Excepted Holder Limit, in the aggregate of fifty-five percent (55%). The foregoing Excepted Holder Limits shall not be deemed to preclude, and shall have no effect on, the Managing Member exercise of the buy-sell pursuant to Article XII. The Partners and the Company Partnership further agree that, in the event any Member either Xxxxxx or the Investor would like to modify its their respective Excepted Holder LimitLimits, the Members, the Managing Member and the Company they shall reasonably cooperate to amend such Excepted Holder Limit; Limits, provided, however, that such cooperation shall not require the Company, the Managing Member Partnership or any Member Partner to agree to allow any REIT the Property Subsidiary to accrue gross income in a taxable year that does not qualify under Section 856(c)(2) of the Code in excess of 0.5% two percent (2%) of the REIT Property Subsidiary’s gross income for such taxable year or take any action that could otherwise jeopardize the REIT Property Subsidiary’s status as a REIT. (iii) Subject to Section 15.15(a)(i)(B) and this Section 15.15(g)(iii), the Managing Member may from time to time increase (or decrease) the REIT Subsidiary Ownership Limit for one or more Persons and decrease (or increase) the REIT Subsidiary Ownership Limit for all other Persons. No decreased REIT Subsidiary Ownership Limit will be effective for any Person whose percentage of capital or profits interest in the Company is in excess of such decreased REIT Subsidiary Ownership Limit until such time as such Person’s percentage of capital or profits interest in the Company equals or falls below the decreased REIT Subsidiary Ownership Limit; provided, however, that any further acquisition of LLC Interests by any such Person (other than a Person for whom an exemption has been granted pursuant to Section 15.15(g)(i) or an Excepted Holder) in excess of the LLC Interests owned by such Person on the date the decreased REIT Subsidiary Ownership Limit became effective will be in violation of the REIT Subsidiary Ownership Limit. No increase to the REIT Subsidiary Ownership Limit may be approved if the new REIT Subsidiary Ownership Limit (taking into account any then-existing Excepted Holder Limits to the extent appropriate as determined by the Managing Member) would allow five or fewer Individuals to Beneficially Own, in the aggregate, more than 49.0% of the capital or profits interests in the Company.