Common use of Excess Shares Clause in Contracts

Excess Shares. (a) If, notwithstanding the other provisions contained in this Article 6, at any time, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the REIT such that any Person would Beneficially Own Units in excess of the applicable Ownership Limit or Existing Holder Limit (as applicable), then, except as otherwise provided in Sections 6.9 and 6.12, the Units Beneficially Owned in excess of such Ownership Limit or Existing Holder Limit (rounded up to the nearest whole Unit) shall constitute “Excess Shares” and shall be treated as provided in this Article 6. 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 6, at any time, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the REIT (as a result of a direct or indirect Transfer or otherwise) which, if effective, would cause the REIT to (i) be beneficially owned (as provided in Section 856(a) of the Code) by less than 100 Persons, (ii) become “closely held” within the meaning of Section 856(h) of the Code, or (iii) otherwise fail to qualify as real estate investment trust under the Code, then the Units that are the subject of such Transfer or other event which would cause the REIT to fail such requirement shall constitute “Excess Shares” and shall be treated as provided in this Article 6. 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 Article 6, there is an event (a “Prohibited Owner Event”) which would result in the disqualification of the REIT as a real estate investment trust under the Code by virtue of actual, Beneficial or constructive ownership of Units, then Units which result in such disqualification shall be automatically exchanged for an equal number of Excess Shares 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 Units are exchanged, Units owned directly or indirectly by any Person who caused the Prohibited Owner Event to occur shall be exchanged before any Units not so held are exchanged. If similarly situated Persons exist, such exchange shall be pro rata. If the REIT is still so disqualified as a real estate investment trust under the Code, Units 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 Shares until the REIT is no longer so disqualified as a real estate investment trust under the Code.

Excess Shares. (a) If, notwithstanding the other provisions contained in this Article 6VII but subject to the provisions of Section 7.22, at any time, until time from and after the Closing Date of the Initial Public Offering and prior to the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the REIT Trust (except for a change resulting from the exchange of OP Units for Equity Shares) such that any Person would Beneficially Own Units Common Shares and/or Preferred Shares in excess of the applicable Ownership Limit or Existing Holder Limit (as applicable)Limit, then, except as otherwise provided in Sections 6.9 7.9 and 6.127.12, the Units Beneficially Owned such Common Shares and/or Preferred Shares in excess of such Ownership Limit or Existing Holder Limit (rounded up to the nearest whole Unitshare) shall constitute “"Excess Shares” " and shall be treated as provided in this Article 6VII. 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 structurestructure (except for a change resulting from the exchange of OP Units for Equity Shares). (b) If, notwithstanding the other provisions contained in this Article 6VII but subject to the provisions of Section 7.22, at any time, until time from and after the Closing Date of the Initial Public Offering and prior to the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the REIT Trust (as except for a result change resulting from the exchange of a direct or indirect Transfer or otherwiseOP Units for Equity Shares) which, if effective, would cause the REIT Trust to (i) be beneficially owned (as provided in Section 856(a) of the Code) by less than 100 Persons, (ii) become “"closely held” " within the meaning of Section 856(h) of the Code, or (iii) otherwise fail to qualify as real estate investment trust under the Code, then the Units that are the subject of such Transfer or other event Common Shares and/or Preferred Shares being Transferred which would cause the REIT Trust to fail such requirement be "closely held" within the meaning of Section 856(h) of the Code (rounded up to the nearest whole share) shall constitute “Excess Shares” Shares and shall be treated as provided in this Article 6VII. 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 structurestructure (except for a change resulting from the exchange of OP Units for Equity Shares). (c) If, at any time prior to the Restriction Termination Date, notwithstanding the other provisions contained in this Article 6, there is an event (a “Prohibited Owner Event”) which would result in the disqualification of the REIT as a real estate investment trust under the Code by virtue of actual, Beneficial or constructive ownership of Units, then Units which result in such disqualification shall be automatically exchanged for an equal number of Excess Shares 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 Units are exchanged, Units owned directly or indirectly by any Person who caused the Prohibited Owner Event to occur shall be exchanged before any Units not so held are exchanged. If similarly situated Persons exist, such exchange shall be pro rata. If the REIT is still so disqualified as a real estate investment trust under the Code, Units 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 Shares until the REIT is no longer so disqualified as a real estate investment trust under the Code.

Excess Shares. 1. If on any date, including, without limitation, any record date (a) Ifeach, notwithstanding an “Excess Share Date”), the other provisions contained in this Article 6number of shares of Capital Stock beneficially owned by Non-Citizens should exceed the Permitted Amount, at any time, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure irrespective of the REIT date on which such that any Person would Beneficially Own Units event becomes known to the Corporation (such shares in excess of the applicable Ownership Limit or Existing Holder Limit (as applicablePermitted Amount, the “Excess Shares”), then, except as otherwise provided in Sections 6.9 and 6.12, then the Units Beneficially Owned in excess shares of such Ownership Limit Capital Stock of the Corporation that constitute Excess Shares for purposes of this Article EIGHTH shall be (a) those shares that have been acquired by or Existing Holder Limit become beneficially owned by Non-Citizens, starting with the most recent acquisition of beneficial ownership of such shares by a Non-Citizen and including, in reverse chronological order of acquisition, all other acquisitions of beneficial ownership of such shares by Non-Citizens from and after the acquisition of beneficial ownership of such shares by a Non-Citizen that first caused such Permitted Amount to be exceeded, or (rounded up b) those shares beneficially owned by Non-Citizens that exceed the Permitted Amount as the result of any repurchase or redemption by the Corporation of shares of its Capital Stock, starting with the most recent acquisition of beneficial ownership of such shares by a Non-Citizen and going in reverse chronological order of acquisition; provided, however, that: (i) the Corporation shall have the sole power to determine, in the exercise of its reasonable judgment, those shares that constitute Excess Shares in accordance with the provisions of this Article EIGHTH; (ii) the Corporation may, in its reasonable discretion, rely on any reasonable documentation provided by Non-Citizens with respect to the date and time of their acquisition of beneficial ownership of Excess Shares; (iii) if the acquisition of beneficial ownership of more than one Excess Share occurs on the same date and the time of acquisition is not definitively established, then the order in which such acquisitions shall be deemed to have occurred on such date shall be determined by lot or by such other method as the Corporation may, in its reasonable discretion, deem appropriate; (iv) Excess Shares that result from a determination that a beneficial owner has ceased to be a Citizen shall be deemed to have been acquired, for purposes of this Article EIGHTH, as of the date that such beneficial owner ceased to be a Citizen; and (v) the Corporation may adjust upward to the nearest whole Unit) shall constitute “share the number of shares of such class or series deemed to be Excess Shares” . Any determination made by the Corporation pursuant to this subparagraph E as to which shares of Capital Stock constitute Excess Shares shall be conclusive and shall be treated as provided in this Article 6. Such designation and treatment shall be deemed effective as of the close of business on the business day prior to the date of the purported Transfer or change in capital structureapplicable Excess Share Date. (b) If, notwithstanding the other provisions contained in this Article 6, at any time, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the REIT (as a result of a direct or indirect Transfer or otherwise) which, if effective, would cause the REIT to (i) be beneficially owned (as provided in Section 856(a) of the Code) by less than 100 Persons, (ii) become “closely held” within the meaning of Section 856(h) of the Code, or (iii) otherwise fail to qualify as real estate investment trust under the Code, then the Units that are the subject of such Transfer or other event which would cause the REIT to fail such requirement shall constitute “Excess Shares” and shall be treated as provided in this Article 6. 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 Article 6, there is an event (a “Prohibited Owner Event”) which would result in the disqualification of the REIT as a real estate investment trust under the Code by virtue of actual, Beneficial or constructive ownership of Units, then Units which result in such disqualification shall be automatically exchanged for an equal number of Excess Shares 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 Units are exchanged, Units owned directly or indirectly by any Person who caused the Prohibited Owner Event to occur shall be exchanged before any Units not so held are exchanged. If similarly situated Persons exist, such exchange shall be pro rata. If the REIT is still so disqualified as a real estate investment trust under the Code, Units 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 Shares until the REIT is no longer so disqualified as a real estate investment trust under the Code.

Excess Shares. (a) If, notwithstanding the other provisions contained in this Article 6, at any time, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the REIT such that any Person would Beneficially Own Units in excess of the applicable Ownership Limit or Existing Holder Limit (as applicable), then, except as otherwise provided in Sections Section 6.9 and 6.12, the Units Beneficially Owned in excess of such Ownership Limit or Existing Holder Limit (rounded up to the nearest whole Unit) shall constitute “Excess Shares” and shall be treated as provided in this Article 6. 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 6, at any time, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the REIT (as a result of a direct or indirect Transfer or otherwise) which, if effective, would cause the REIT to (i) be beneficially owned (as provided in Section 856(a) of the Code) by less than 100 Persons, (ii) become “closely held” within the meaning of Section 856(h) of the Code, or (iii) otherwise fail to qualify as real estate investment trust under the Code, then the Units that are the subject of such Transfer or other event which would cause the REIT to fail such requirement shall constitute “Excess Shares” and shall be treated as provided in this Article 6. 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 Article 6, there is an event (a “Prohibited Owner Event”) which would result in the disqualification of the REIT as a real estate investment trust under the Code by virtue of actual, Beneficial or constructive ownership of Units, then Units which result in such disqualification shall be automatically exchanged for an equal number of Excess Shares 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 Units are exchanged, Units owned directly or indirectly by any Person who caused the Prohibited Owner Event to occur shall be exchanged before any Units not so held are exchanged. If similarly situated Persons exist, such exchange shall be pro rata. If the REIT is still so disqualified as a real estate investment trust under the Code, Units 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 Shares until the REIT is no longer so disqualified as a real estate investment trust under the Code.

Excess Shares. (a) If, notwithstanding the other provisions contained in this Article 6Exhibit B, at any time, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the REIT Corporation such that any Person would Beneficially Own Units shares of Stock in excess of the applicable Ownership Limit or Existing Holder Limit (as applicable)Limit, then, except as otherwise provided in Sections 6.9 9 and 6.1212, the Units shares of Stock Beneficially Owned in excess of such Ownership Limit or Existing Holder Limit (rounded up to the nearest whole Unitshare of Stock) shall constitute “Excess Shares” and shall be treated as provided in this Article 6. Exhibit B. 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 6Exhibit B, at any time, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the REIT Corporation (as a result of a direct or indirect Transfer or otherwise) which, if effective, would cause the REIT Corporation to (i) be beneficially owned (as provided in Section 856(a) of the Code) by less than 100 PersonsPersons (after January 30 of the taxable year following the taxable year for which the REIT Subsidiary makes its election to be treated as a REIT), (ii) become “closely held” within the meaning of Section 856(h) of the Code, or (iii) otherwise fail to qualify as real estate investment trust a REIT under the Code, then the Units shares of Stock that are the subject of such Transfer or other event which would cause the REIT Corporation to fail such requirement shall constitute “Excess Shares” and shall be treated as provided in this Article 6. Exhibit B. 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 Article 6Exhibit B, there is an event (a “Prohibited Owner Event”) which would result in the disqualification of the REIT Corporation as a real estate investment trust REIT under the Code by virtue of actual, Beneficial or constructive ownership of Unitsshares of Stock, then Units the shares of Stock which result in such disqualification shall be automatically exchanged for an equal number of constitute Excess Shares to the extent necessary to avoid such disqualification. disqualification and shall be treated as provided in this Exhibit B. Such exchange designation and treatment 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 Units shares of Stock are exchangedso designated as Excess Shares, Units shares of Stock owned directly or indirectly by any Person who caused the Prohibited Owner Event to occur shall be exchanged designated and treated as Excess Shares before any Units shares of Stock not so held are exchangeddesignated and treated as Excess Shares. If similarly situated Persons exist, such exchange designation and treatment shall be pro rata. If the REIT Corporation is still so disqualified as a real estate investment trust REIT under the Code, Units the shares of Stock 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 Shares until the REIT Corporation is no longer so disqualified as a real estate investment trust REIT under the Code.

Excess Shares. (aA) IfIf any Regulated Holder (as defined below), notwithstanding the other provisions contained in this Article 6together with any of its Affiliates (as defined below), at any timetime would otherwise hold any shares of Class C Common Stock that, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure aggregate, would constitute more than 4.99% of a “class of voting securities” (as defined below) of the REIT Corporation (such that any Person would Beneficially Own Units shares of Class C Common Stock in excess of the applicable Ownership Limit or Existing such 4.99% threshold by such Regulated Holder Limit (as applicableand its Affiliates, “Excess Shares”), then, except as otherwise provided in Sections 6.9 required by applicable law, any Excess Shares shall not be entitled to vote on or consent with respect to any matter (and 6.12regardless of the class or classes of securities that are voting on such matter) pursuant to this Certificate of Incorporation, the Units Beneficially Owned By-Laws of the Corporation or any other agreements between the Corporation and its stockholders where the consent or vote of the stockholders is required on a particular matter, and such Excess Shares shall not be entitled to vote or to be counted for purposes of determining whether any vote required under this Certificate of Incorporation has been approved by the requisite percentage of voting securities or to be counted towards any quorum or outstanding share threshold pursuant to this Certificate of Incorporation or the By-Laws of the Corporation. Without limitation of the foregoing, a Regulated Holder may voluntarily elect to classify all or a portion of the shares of Class C Common Stock held by it as “Excess Shares” automatically and immediately upon delivery of written notice of the same to the Corporation, without the need for further action by such Regulated Holder, the Corporation or any other person or entity. Once shares of Class C Common Stock have been classified as “Excess Shares” hereunder (whether automatically due to being in excess of such Ownership Limit 4.99% threshold or Existing Holder Limit by voluntary election by a Regulated Holder), such shares shall remain nonvoting, including in the event such Regulated Holder’s holdings fall below 4.99% of such class of voting securities of the Corporation, except upon a Permitted Regulatory Transfer (rounded up as defined below). No other rights attaching to the nearest whole Unit) Excess Shares shall constitute be amended, reduced, waived or otherwise modified pursuant to this Section 4.3(a)(iv). For the sake of clarity, only shares of Class C Common Stock shall be classifiable as “Excess Shares” under this Certificate of Incorporation, and under no circumstances shall any share of Class A Common Stock be treated as provided in classifiable or otherwise considered Excess Shares under this Article 6. Such designation and treatment shall be effective as Certificate of the close of business on the business day prior to the date of the purported Transfer or change in capital structureIncorporation. (bB) IfIf a Regulated Holder and one or more of its Affiliates each hold shares of Class C Common Stock that, notwithstanding in the aggregate, would, if not for the effect of Section 4.3(a)(iv)(A), constitute more than 4.99% of a class of voting securities of the Corporation, such Regulated Holder and such Affiliates may direct the Corporation as to how to allocate the Excess Shares among the Regulated Holder and such Affiliates. Nothing herein or elsewhere shall prohibit a Regulated Holder from transferring any portion of its shares to an Affiliate of such Regulated Holder. (C) Any shares of Class C Common Stock which become Excess Shares hereunder shall remain nonvoting upon transfer (including, without limitation, upon transfer to any other provisions contained Regulated Holder), except that Excess Shares shall be entitled to full voting rights for shares of Class C Common Stock set forth in this Article 6, at any time, until Certificate of Incorporation and shall no longer be deemed to be Excess Shares upon the Restriction Termination Date, there is a purported Transfer or other change in the capital structure transfer of the REIT (as a result of a direct or indirect Transfer or otherwise) which, if effective, would cause the REIT to such Excess Shares (i) be beneficially owned (as provided in Section 856(a) of the Code) by less than 100 Persons, a widespread public distribution; (ii) become “closely held” within to the meaning of Corporation (or to Pico (as defined below) in connection with any exchange pursuant to Section 856(h) 14.1 of the Code, or LLC Agreement (as defined below)); (iii) otherwise fail in a transfer in which no transferee (or group of associated transferees) would receive 2% or more of any class of voting securities of the Corporation or (iv) to qualify as real estate investment trust under a transferee that would control more than 50% of every class of voting securities of the CodeCorporation, then without giving effect the Units that are the subject transfer of such Transfer or other event which would cause the REIT to fail such requirement shall constitute Excess Shares (clauses (i) through (iv) each a “Excess Shares” and shall be treated as provided in this Article 6. 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 structurePermitted Regulatory Transfer”). (cD) If, at any time prior to the Restriction Termination Date, notwithstanding the other provisions contained in For purposes of this Article 6, there is an event (a “Prohibited Owner Event”) which would result in the disqualification Certificate of the REIT as a real estate investment trust under the Code by virtue of actual, Beneficial or constructive ownership of Units, then Units which result in such disqualification shall be automatically exchanged for an equal number of Excess Shares 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 Units are exchanged, Units owned directly or indirectly by any Person who caused the Prohibited Owner Event to occur shall be exchanged before any Units not so held are exchanged. If similarly situated Persons exist, such exchange shall be pro rata. If the REIT is still so disqualified as a real estate investment trust under the Code, Units 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 Shares until the REIT is no longer so disqualified as a real estate investment trust under the Code.Incorporation:

Excess Shares. (a) If, notwithstanding the other provisions contained in this Article 6VII but subject to the provisions of Section 7.22, at any time, until time from and after the closing Date of the Combination and prior to the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the REIT Trust (except for a change resulting from the exchange of interests convertible into Equity Shares) such that any Person would Beneficially Own Units Common Shares and/or Preferred Shares in excess of the applicable otherwise Ownership Limit or Existing Holder Limit (as applicable)Limit, then, except as otherwise provided in Sections 6.9 sections 7.9 and 6.127.12, the Units Beneficially Owned such Common Shares and/or Preferred Shares in excess of such Ownership Limit or Existing Holder Limit (rounded up to the nearest whole Unitshare) shall constitute “"Excess Shares” " and shall be treated as provided in this Article 6VII. 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 structurestructure (except for a change resulting from the exchange of interests convertible into Equity Shares). (b) If, notwithstanding the other provisions contained in this Article 6, VII but subject to the provisions of section 7.22 at any time, until time from and after the Closing Date of the Combination and prior to the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the REIT Trust (as except for a result change resulting from the exchange of a direct or indirect Transfer or otherwiseinterests convertible into Equity Shares) which, if effective, would cause the REIT Trust to (i) be beneficially owned (as provided in Section 856(a) of the Code) by less than 100 Persons, (ii) become “"closely held” " within the meaning of Section 856(h) of the Code, or (iii) otherwise fail to qualify as real estate investment trust under the Code, then the Units that are the subject of such Transfer or other event Common Shares and/or Preferred Shares being Transferred which would cause the REIT Trust to fail such requirement be "closely held" within the meaning of Section 856(h) of the Code (rounded up to the nearest whole share) shall constitute “Excess Shares” Shares and shall be treated as provided in this Article 6VII. 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 structurestructure (except for a change resulting from the exchange of interests convertible into Equity Shares). (c) If, at any time prior to the Restriction Termination Date, notwithstanding the other provisions contained in this Article 6, there is an event (a “Prohibited Owner Event”) which would result in the disqualification of the REIT as a real estate investment trust under the Code by virtue of actual, Beneficial or constructive ownership of Units, then Units which result in such disqualification shall be automatically exchanged for an equal number of Excess Shares 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 Units are exchanged, Units owned directly or indirectly by any Person who caused the Prohibited Owner Event to occur shall be exchanged before any Units not so held are exchanged. If similarly situated Persons exist, such exchange shall be pro rata. If the REIT is still so disqualified as a real estate investment trust under the Code, Units 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 Shares until the REIT is no longer so disqualified as a real estate investment trust under the Code.