Common use of Excess Units Clause in Contracts

Excess Units. If, notwithstanding the other provisions contained in this Section 5.2, at any time, until the Restriction Termination Date, there is a purported Transfer or Non-Transfer Event that, if effective, would (A) prevent Company from meeting any of the REIT income requirements under Section 856(c) of the Code, (B) result in Company being “closely held” within the meaning of Section 856(h) of the Code, (C) result in Company being beneficially owned by fewer than one hundred (100) persons or (D) otherwise cause Company to fail to qualify as a REIT, then the purported transferee or resulting holder shall be deemed to be a Prohibited Owner and shall acquire no right or interest (or, in the case of a Non-Transfer Event, the record owner of the Membership Interests with respect to which such Non-Transfer Event occurred shall constitute a Prohibited Owner and shall cease to own any right or interest) in such amount of Membership Interests, the ownership of which by such purported transferee or record holder would result in or cause any of the events described in subsections (A) through (D) above, (y) such amount of Membership Interests shall be automatically converted into an equal amount of “Excess Units” and transferred to an Excess Units Trust in accordance with this Section 5.2 and (z) the Prohibited Owner shall submit such amount of Membership Interests (including the certificates representing such amount of Membership Interests, if any) to Company, accompanied by all requisite and duly executed assignments of transfer thereof, for registration in the name of the Trustee of the Excess Units Trust. 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; provided, that if any partnership agreement or similar organization document of a Member has a provision (“Upper-Tier REIT Savings Provisions”) similar to this Section 5.2(b), such Upper-Tier REIT Savings Provision shall apply immediately prior to this Section 5.2(b).

Excess Units. (a) If, notwithstanding the other provisions contained in this Section 5.2Article 6, at any time, until the Restriction Termination Date, there is a purported Transfer or Non-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 Units” 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 Event thator 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 (A) prevent Company from meeting any of cause the REIT income requirements under to (i) be beneficially owned (as provided in Section 856(c856(a) of the Code) by less than 100 Persons, (Bii) result in Company being become “closely held” within the meaning of Section 856(h) of the Code, (Ciii) result in Company being beneficially owned by fewer than one hundred become a “pension‑held REIT” within the meaning of Section 856(h) of the Code, (100iv) persons or (D) otherwise cause Company subject to Section 8.2(a)(iv), fail to qualify as a REITDomestically‑Controlled REIT or (v) otherwise fail to qualify as real estate investment trust under the Code, then the purported transferee Units that are the subject of such Transfer or resulting holder shall be deemed other event which would cause the REIT to be a Prohibited Owner and shall acquire no right or interest (or, in the case of a Non-Transfer Event, the record owner of the Membership Interests with respect to which fail such Non-Transfer Event occurred requirement shall constitute a Prohibited Owner and shall cease to own any right or interest) in such amount of Membership Interests, the ownership of which by such purported transferee or record holder would result in or cause any of the events described in subsections (A) through (D) above, (y) such amount of Membership Interests shall be automatically converted into an equal amount of “Excess Units” and transferred to an Excess Units Trust shall be treated as provided in accordance with this Section 5.2 and (z) the Prohibited Owner shall submit such amount of Membership Interests (including the certificates representing such amount of Membership Interests, if any) to Company, accompanied by all requisite and duly executed assignments of transfer thereof, for registration in the name of the Trustee of the Excess Units TrustArticle 6. 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; provided. (c) If, that if at any partnership agreement or similar organization document of time prior to the Restriction Termination Date, notwithstanding the other provisions contained in this Article 6, there is an event (a Member has a provision (“Upper-Tier REIT Savings ProvisionsProhibited Owner Event”) similar 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 Units to this Section 5.2(b)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 Upper-Tier exchange shall be pro raw. If the REIT Savings Provision 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 apply immediately prior to this Section 5.2(b)be chosen by random lot and exchanged for Excess Units until the REIT is no longer so disqualified as a real estate investment trust under the Code.