Common use of Excess Interests Clause in Contracts

Excess Interests. (1) If, notwithstanding the other provisions contained in this Section 5.1(f), at any time, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the Partnership (as a result of a direct or indirect transfer or otherwise) which, if effective, would cause the Subsidiary REIT to become “closely held” within the meaning of Section 856(h) of the Code or otherwise fail to qualify as a REIT, then the Partnership Interests that are the subject of such Transfer or other event which would cause the Subsidiary REIT to fail such requirement shall constitute “Excess Interests” and shall be treated as provided in this Section 5.1(f). Such designation and treatment shall be effective as of the close of business on the Business Day prior to the date of the purported Transfer or change in capital structure. (2) If, at any time prior to the Restriction Termination Date, notwithstanding the other provisions contained in this Section 5.1(f), there is an event (a “Prohibited Owner Event”) which would result in the disqualification of the Subsidiary REIT as a REIT by virtue of Beneficial Ownership or Constructive Ownership of units of the Subsidiary REIT, then Partnership Interests which result in such disqualification shall be automatically exchanged for an equal number of Excess Interests to the extent necessary to avoid such disqualification. Such exchange shall be effective as of the close of business on the Business Day prior to the date of the Prohibited Owner Event. In determining which Partnership Interests are exchanged, Partnership Interests owned directly or indirectly by any Person who caused the Prohibited Owner Event to occur (such Person, a “Purported Record Transferee”) shall be exchanged before any Partnership Interests not so held are exchanged. If similarly situated Persons exist, such exchange shall be pro rata.

Excess Interests. (1a) If, notwithstanding the other provisions contained in this Section 5.1(f)Article 9, at any time, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the Partnership Venture such that any Person would Beneficially Own Interests in excess of the applicable Ownership Limit or Existing Holder Limit (as applicable), then, except as otherwise provided in Sections 9.9 and 9.12, the Interests Beneficially Owned in excess of such Ownership Limit or Existing Holder Limit (rounded up to the nearest whole Interest) shall constitute “Excess Interests” and shall be treated as provided in this Article 9. Such designation and treatment shall be effective as of the close of business on the business day prior to the date of the purported Transfer or change in capital structure. (b) If, notwithstanding the other provisions contained in this Article 9, at any time, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the Venture (as a result of a direct or indirect transfer Transfer or otherwise) which, if effective, would cause the Subsidiary Venture (treating the Venture as if it otherwise qualified as a REIT solely for this purpose) to (i) become “closely held” within the meaning of Section 856(h) of the Code Code, (ii) become a “pension-held REIT” within the meaning of Section 856(h) of the Code, (iii) fail to qualify as a Domestically-Controlled REIT or (iv) otherwise fail to qualify as a REIT, then the Partnership Interests that are the subject of such Transfer or other event which would cause the Subsidiary REIT Venture to fail such requirement shall constitute “Excess Interests” and shall be treated as provided in this Section 5.1(f)Article 9. Such designation and treatment shall be effective as of the close of business on the Business Day business day prior to the date of the purported Transfer or change in capital structure. (2c) If, at any time prior to the Restriction Termination Date, notwithstanding the other provisions contained in this Section 5.1(f)Article 9, there is an event (a “Prohibited Owner Event”) which would result in the disqualification of the Subsidiary REIT Venture as a REIT under the Code (treating the Venture as if it otherwise qualified as a REIT solely for this purpose) by virtue of actual, Beneficial Ownership or Constructive Ownership constructive ownership of units of the Subsidiary REITInterests, then Partnership Interests which result in such disqualification shall be automatically exchanged for an equal number of Excess Interests to the extent necessary to avoid such disqualification. Such exchange shall be effective as of the close of business on the Business Day business day prior to the date of the Prohibited Owner Event. In determining which Partnership Interests are exchanged, Partnership Interests owned directly or indirectly by any Person who caused the Prohibited Owner Event to occur (such Person, a “Purported Record Transferee”) shall be exchanged before any Partnership Interests not so held are exchanged. If similarly situated Persons exist, such exchange shall be pro rata. If the Venture is still so disqualified as a REIT (treating the Venture as if it otherwise qualified as a REIT solely for this purpose), Interests owned directly or indirectly by Persons who did not cause the Prohibited Owner Event to occur shall be chosen by random lot and exchanged for Excess Interests until the Venture is no longer so disqualified as a REIT (treating the Venture as if it otherwise qualified as a REIT solely for this purpose).

Excess Interests. (1a) If, notwithstanding the other provisions contained in this Section 5.1(f)Article 10, at any time, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the Partnership Venture such that any Person would Beneficially Own Interests in excess of the applicable Ownership Limit or Existing Holder Limit (as a result of a direct or indirect transfer or otherwise) whichapplicable), if effectivethen, would cause except as otherwise provided in Sections 10.9 and 10.12, the Subsidiary REIT to become “closely held” within the meaning of Section 856(h) of the Code or otherwise fail to qualify as a REIT, then the Partnership Interests that are the subject Beneficially Owned in excess of such Transfer Ownership Limit or other event which would cause Existing Holder Limit (rounded up to the Subsidiary REIT to fail such requirement nearest whole Interest) shall constitute “Excess Interests” and shall be treated as provided in this Section 5.1(f)Article 10. Such designation and treatment shall be effective as of the close of business on the Business Day prior to the date of the purported Transfer or change in capital structure. (2b) If, notwithstanding the other provisions contained in this Article 10, at any time, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the Venture (as a result of a direct or indirect Transfer or otherwise) which, if effective, would cause the Venture (treating the Venture as if it otherwise qualified as a REIT solely for this purpose) to (i) become “closely held” within the meaning of Section 856(h) of the Code, (ii) fail to qualify as a Domestically-Controlled REIT or (iii) otherwise fail to qualify as a REIT, then the Interests that are the subject of such Transfer or other event which would cause the Venture to fail such requirement shall constitute “Excess Interests” and shall be treated as provided in this Article 10. Such designation and treatment shall be effective as of the close of business on the Business Day prior to the date of the purported Transfer or change in capital structure. (c) If, at any time prior to the Restriction Termination Date, notwithstanding the other provisions contained in this Section 5.1(f)Article 10, there is an event (a “Prohibited Owner Event”) which would result in the disqualification of the Subsidiary REIT Venture as a REIT under the Code (treating the Venture as if it otherwise qualified as a REIT solely for this purpose) by virtue of actual, Beneficial Ownership or Constructive Ownership constructive ownership of units of the Subsidiary REITInterests, then Partnership Interests which result in such disqualification shall be automatically exchanged for an equal number of Excess Interests to the extent necessary to avoid such disqualification. Such exchange shall be effective as of the close of business on the Business Day prior to the date of the Prohibited Owner Event. In determining which Partnership Interests are exchanged, Partnership Interests owned directly or indirectly by any Person who caused the Prohibited Owner Event to occur (such Person, a “Purported Record Transferee”) shall be exchanged before any Partnership Interests not so held are exchanged. If similarly situated Persons exist, such exchange shall be pro rata. If the Venture is still so disqualified as a REIT (treating the Venture as if it otherwise qualified as a REIT solely for this purpose), Interests owned directly or indirectly by Persons who did not cause the Prohibited Owner Event to occur shall be chosen by random lot and exchanged for Excess Interests until the Venture is no longer so disqualified as a REIT (treating the Venture as if it otherwise qualified as a REIT solely for this purpose).

Excess Interests. (1A) If, notwithstanding the other provisions contained in this Section 5.1(f8.2(f), at any timetime beginning on the first date the Partnership owns an interest in a Subsidiary REIT, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the Partnership or any Subsidiary REIT (as a result of a direct or indirect transfer or otherwise) which, if effective, such that any Person would cause the Subsidiary REIT to become “closely held” within the meaning of Section 856(h) Beneficially Own Interests in excess of the Code Ownership Limit, then, except as otherwise provided in Section 8.2(f)(viii), the Interests Beneficially Owned or otherwise fail to qualify as a REIT, then Constructively Owned in excess of the Partnership Interests that are the subject of such Transfer or other event which would cause the Subsidiary REIT to fail such requirement Ownership Limit shall constitute “Excess Interests” and shall be treated as provided in this Section 5.1(f8.2(f). Such designation and treatment shall be effective as of the close of business on the Business Day prior to the date of the purported Transfer or change in capital structure. (2B) If, notwithstanding the other provisions contained in this Section 8.2(f), at any time beginning on the first date the Partnership owns an interest in a Subsidiary REIT, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the Partnership or any Subsidiary REIT (as a result of a direct or indirect transfer or otherwise) which, if effective, would cause a Subsidiary REIT to become “closely held” within the meaning of Section 856(h) of the Code or otherwise fail to qualify as a REIT, then the Interests that are the subject of such Transfer or other event which would cause the Partnership to fail such requirement shall constitute “Excess Interests” and shall be treated as provided in this Section 8.2(f). Such designation and treatment shall be effective as of the close of business on the Business Day prior to the date of the purported Transfer or change in capital structure. (C) If at any time beginning on the first date the Partnership owns an interest in a Subsidiary REIT, until the Restriction Termination Date, notwithstanding the other provisions contained in this Section 5.1(f8.2(f), there is an event (a “Prohibited Owner Event”) which would result in the disqualification of the a Subsidiary REIT as a REIT by virtue of Beneficial Ownership or Constructive Ownership of units of the Subsidiary REITInterests, then Partnership Interests which result in such disqualification shall be automatically exchanged for an equal number of Excess Interests to the extent necessary to avoid such disqualification. Such exchange shall be effective as of the close of business on the Business Day prior to the date of the Prohibited Owner Event. In determining which Partnership Interests are exchanged, Partnership Interests owned directly or indirectly by any Person who caused the Prohibited Owner Event to occur (such Person, a “Purported Record Transferee”) shall be exchanged before any Partnership Interests not so held are exchanged. If similarly situated Persons exist, such exchange shall be pro rata. If a Subsidiary REIT is still so disqualified as a REIT, Interests owned directly or indirectly by Persons who did not cause the Prohibited Owner Event to occur shall be exchanged for Excess Interests until the Subsidiary REIT is no longer so disqualified as a REIT.

Excess Interests. (1a) If, notwithstanding the other provisions contained in this Section 5.1(f)Article 9, at any time, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the Partnership Venture such that any Person would Beneficially Own Interests in excess of the applicable Ownership Limit or Existing Holder Limit (as applicable), then, except as otherwise provided in Sections 9.9 and 9.12, the Interests Beneficially Owned in excess of such Ownership Limit or Existing Holder Limit (rounded up to the nearest whole Interest) shall constitute “Excess Interests” and shall be treated as provided in this Article 9. Such designation and treatment shall be effective as of the close of business on the business day prior to the date of the purported Transfer or change in capital structure. (b) If, notwithstanding the other provisions contained in this Article 9, at any time, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the Venture (as a result of a direct or indirect transfer Transfer or otherwise) which, if effective, would cause the Subsidiary Venture (treating the Venture as if it otherwise qualified as a REIT solely for this purpose) to (i) become “closely held” within the meaning of Section 856(h) of the Code Code, (ii) become a “pension‑held REIT” within the meaning of Section 856(h) of the Code, (iii) subject to Section 2.6(b)(iv) hereof, fail to qualify as a Domestically‑Controlled REIT or (iv) otherwise fail to qualify as a REIT, then the Partnership Interests that are the subject of such Transfer or other event which would cause the Subsidiary REIT Venture to fail such requirement shall constitute “Excess Interests” and shall be treated as provided in this Section 5.1(f)Article 9. Such designation and treatment shall be effective as of the close of business on the Business Day business day prior to the date of the purported Transfer or change in capital structure. (2c) If, at any time prior to the Restriction Termination Date, notwithstanding the other provisions contained in this Section 5.1(f)Article 9, there is an event (a “Prohibited Owner Event”) which would result in the disqualification of the Subsidiary REIT Venture as a REIT under the Code (treating the Venture as if it otherwise qualified as a REIT solely for this purpose) by virtue of actual, Beneficial Ownership or Constructive Ownership constructive ownership of units of the Subsidiary REITInterests, then Partnership Interests which result in such disqualification shall be automatically exchanged for an equal number of Excess Interests to the extent necessary to avoid such disqualification. Such exchange shall be effective as of the close of business on the Business Day business day prior to the date of the Prohibited Owner Event. In determining which Partnership Interests are exchanged, Partnership Interests owned directly or indirectly by any Person who caused the Prohibited Owner Event to occur (such Person, a “Purported Record Transferee”) shall be exchanged before any Partnership Interests not so held are exchanged. If similarly situated Persons exist, such exchange shall be pro rata. If the Venture is still so disqualified as a REIT (treating the Venture as if it otherwise qualified as a REIT solely for this purpose), Interests owned directly or indirectly by Persons who did not cause the Prohibited Owner Event to occur shall be chosen by random lot and exchanged for Excess Interests until the Venture is no longer so disqualified as a REIT (treating the Venture as if it otherwise qualified as a REIT solely for this purpose).