Common use of Repurchases of Units Clause in Contracts

Repurchases of Units. (a) As of the last calendar day of the first calendar quarter that occurs after the expiration of the Lock-Up Period in respect of a Member’s Capital Commitment (the “Initial Repurchase Date”), the Company may offer, and such Member may submit a request for, the Company to repurchase all or any portion of such Member’s Units that are attributable to such Capital Commitment, subject to the limitations set forth in this Agreement. Thereafter, as of the last calendar day of each calendar quarter (together with the Initial Repurchase Date, each a “Repurchase Date”), the Company may offer, and such Member may submit a request for, the Company to repurchase all or any portion of such Member’s Units that are attributable to such Capital Commitment, subject to the limitations set forth in this Agreement. For the avoidance of doubt, any Member who submits a request for the Company to repurchase all of its Units attributable to a Capital Commitment shall not be subject to the Reinvestment Plan, but rather shall be deemed to have made a Distribution Election with respect to such Capital Commitment. A Member submitting a partial repurchase request that holds Units subject to different Management Fee rates may elect which Units it wishes to be subject to such repurchase request. (b) To the extent the Company chooses to repurchase Units on a Repurchase Date, the Company shall only repurchase such Units as of the opening of such Repurchase Date. In order to have its Units repurchased as of a Repurchase Date, a Members shall be required to submit a repurchase request and required documentation no later than ninety (90) days prior to the applicable Repurchase Date (the “Repurchase Request Period”). Repurchase requests shall be effected at a repurchase price equal to the transaction price on the applicable Repurchase Date (which shall generally be equal to the Net Asset Value per Unit calculated as of the end of the calendar quarter applicable to applicable Repurchase Date. (c) The total amount of aggregate repurchases of Units from Members as of any Repurchase Date shall be limited to no more than 5% of the aggregate Net Asset Value of the Units as of such Repurchase Date, subject to increase by the Company as determined in its sole discretion. (d) In the event the Company determines to repurchase some but not all of the Units submitted for repurchase during any calendar quarter, Units submitted for repurchase during such calendar quarter shall be repurchased on a pro rata basis among such Members who submitted a repurchase request with respect to such calendar quarter. All unsatisfied repurchase requests shall roll over and be automatically resubmitted upon the recommencement of the repurchase plan set forth in this Agreement and such resubmitted repurchase requests shall be satisfied prior to and without taking into account any subsequent repurchase requests (i.e., repurchases of Units will be made on a first-in, first-out basis). (e) Repurchase requests received after the Repurchase Request Period, shall be executed, at the discretion of the Company, on the next available Repurchase Date at the repurchase price equal to the transaction price applicable such next available Repurchase Date. (f) Repurchase requests are irrevocable by the Members upon receipt by the Company, but such irrevocability may be waived in the Company’s sole discretion. (g) The Company may waive or reduce the Repurchase Request Period in its sole discretion and/or permit repurchases at other times in its sole discretion. (h) Repurchase proceeds shall typically be paid within forty-five (45) days after the Repurchase Date. In the event of a complete repurchase, at least 95% of the amount distributable to the Member shall be paid within forty-five (45) days after the Repurchase Date, and the remaining balance of the distribution shall be paid without interest (although the Company reserves the right to pay interest in its sole discretion) within a reasonable time following the completion of the Company’s audit for the Fiscal Year in which the repurchase occurs, subject to the right of the Company to establish reasonable reserves in the event that the Company is subject to a contingent liability at the time of the repurchase. (i) Notwithstanding anything to the contrary set forth in this Agreement, the Company shall not be permitted to repurchase all or any portion of a Member’s Units if the Company determines that such repurchase would itself cause a REIT qualification issue, cause the assets of the Company to be deemed to be “plan assets” for purposes of ERISA or Section 4975 of the Code or violate any other provision of this Agreement. (j) For the avoidance of doubt, while Members may request that the Company repurchase all or any portion of their Units pursuant to the repurchase plan upon the Company’s offer to repurchase such Units, the Company shall not be obligated to repurchase any Units and may choose to repurchase only some, or even none, of the Units that have been requested to be repurchased in any particular quarter, as determined in the sole discretion of the Company.

Repurchases of Units. 7.12.1 In the event (a) As in the case of a Management Holder, such Management Holder ceases (i) to be an Officer or (ii) to be employed by any of the last calendar day EIK Manager or its Subsidiaries for any reason or (b) in the case of a Management Holder or the EIK Manager, the Management Agreement is terminated for any reason, such Member’s Common Units and Profits Units (whether held by such Member or one or more of such Member’s respective Transferees) shall be subject to repurchase first by the Investor Group and second by the Company pursuant to the terms and conditions set forth in this Section 7.12 (the “Repurchase Option”)). 7.12.2 The purchase price for all such Common Units and Profits Units shall be equal to the Fair Market Value thereof on the date of such determination. Notwithstanding the foregoing, (i) in the event that the Management Holder ceases to be an Officer or employed by the EIK Manager or its Subsidiaries within twelve (12) months after the Issue Date as a result of either (A) resignation by such Management Holder other than for Good Reason or (B) termination for Cause, the purchase price for all such Common Units shall be the lower of the first calendar quarter Fair Market Value thereof and the Original Cost therefor and (ii) in the event that occurs the Management Holder ceases to be an Officer or employed by the EIK Manager or its Subsidiaries for Cause following the twelve (12) months after the Issue Date, the purchase price for all such Common Units shall be the Fair Market Value thereof. 7.12.3 As soon as practicable after the Termination Date, but in any event within 30 days after the Termination Date, the Company shall give written notice (the “Investor Option Notice”) to the Investor setting forth the number of such Common Units and Profits Units subject to repurchase (the “Available Securities”) and the purchase price for the Available Securities. The members of the Investor Group shall have the right (but not the obligation) to exercise the Repurchase Option for all or a portion of the Available Securities by delivering written notice to the Company within 20 days after the Investor Option Notice has been given by the Company. As soon as practicable, and in any event within five days after the expiration of the Locklater of the initial 20-Up Period day offer period set forth above, the Company shall notify Doc#: US1:15482657v3 the Management Holder or EIK Manager as to the number of Common Units or Profits Units, as case may be, being purchased from such Management Holder or EIK Manager by the Investor Group, the aggregate consideration to be paid for such Common Units or Profits Units and the time and place for the closing of the repurchase, and shall expressly instruct the Member that if no notice of disagreement with respect to the determination of Fair Market Value is delivered to the Board within thirty (30) days in respect according with Section 9.3 the determination of a Member’s Capital Commitment the consideration for such Common Units or Profits Units shall be final and binding on such Member (the “Initial MH Investor Repurchase DateNotice”). 7.12.4 If for any reason the Investor Group does not elect to purchase all of the Units offered pursuant to the Repurchase Option, the Company may offershall have the right (but not the obligation) to exercise the Repurchase Option for all or a portion of the Units the Investor Group have not elected to purchase (the “Other Available Securities”) by delivering written notice (the “Company Repurchase Notice”) to the Management Holder within 60 days after the Company has determined that there will be Other Available Securities. The Company Repurchase Notice shall set forth the number of Common Units and Profits Units to be purchased from such Member, the aggregate consideration to be paid for such Units and the time and place for the closing of the repurchase, and shall expressly instruct such Member that if no notice of disagreement with respect to the determination of Fair Market Value is delivered to the Board within thirty (30) days in according with Section 9.3 the determination of the consideration for such Common Units and Profits Units shall be final and binding on such Management Holder. 7.12.5 The closing of the repurchase of the Units pursuant to the Repurchase Option shall take place on the date designated by the Company Repurchase Notice or the MH Investor Repurchase Notice, as applicable, which date shall be as soon as reasonably practicable after determination of the Fair Market Value of the Units subject to repurchase. Subject to Section 7.12.7, the Company and/or the Investor Group shall pay for the Units to be purchased pursuant to the Repurchase Option by delivery of a cashier’s or certified check or wire transfer of funds. At the closing, the Transferor of such Units being purchased shall deliver the certificate or certificates representing such Units (if such Units are certificated) to the purchaser or purchasers of such Units, accompanied by duly executed assignments. In addition, the purchasers of such Units hereunder shall be entitled to (x) receive customary representations and warranties from the sellers regarding such sale of securities (including representations and warranties regarding good title to such securities, free and clear of any liens or encumbrances, the Transferor’s authorization and/or capacity to sell such securities and that the agreement containing such representations and warranties is a valid and binding agreement, enforceable against such Transferor in accordance with its terms, without violation of any agreement, contract or other provision to which such Transferor is party) and (y) require that signatures be guaranteed by a national bank or reputable securities broker. 7.12.6 Upon delivery of the Company Repurchase Notice or the MH Investor Repurchase Notice, as applicable, then from and after such time, the holder of such Units from whom such securities are to be purchased shall cease to have any rights as a holder of such securities (other than the right to receive payment of such consideration in accordance with this Section 7.12), and such securities shall be deemed purchased in accordance with the applicable provisions hereof and the Company or the Investor Group, as the case may be, shall Doc#: US1:15482657v3 be deemed the owner(s) (of record and beneficially) and holder(s) of such securities, whether or not any certificate representing such Units has been delivered as required by this Agreement. 7.12.7 Notwithstanding anything to the contrary contained in this Agreement, all repurchases of Common Units or Profits Units, as the case may be from Members by the Company shall be subject to applicable restrictions contained in the Act and in the Company’s and its Subsidiaries’ debt and equity financing agreements (including any restricted payment covenant prohibiting direct or indirect distributions to the Company in order to effectuate such repurchase) (each such restriction, a “Restrictive Covenant”). If any such Restrictive Covenant prohibits the repurchase of Units of Members hereunder which the Company is otherwise entitled to make, the time periods provided in this Section 7.12 with respect to the repurchase shall be suspended, and the Company may make such repurchases as soon as it is permitted to do so under such Restrictive Covenants; provided, that the time periods set forth in this Section 7.12 shall resume and be in full force and effect from and after the date on which the Company is first able to effect such repurchases in compliance with the Restricted Covenants. In addition, if any such Restrictive Covenant prohibits the repurchase from a Member of Units hereunder with a cashier’s or certified check or wire transfer of funds, or if the Company otherwise does not have sufficient available cash, then the Company may submit make such repurchase of Units with a request forsubordinated promissory note, payable on the first day on which the Company is able to make cash payments in compliance with the Restrictive Covenants and/or has sufficient cash or other liquid assets to make such repurchase, as applicable, bearing interest (payable at maturity) at a simple rate per annum equal to the Base Rate (a “Subordinated Note”). Any Subordinated Note issued by the Company pursuant to this Section 7.12 shall be subject to any Restrictive Covenants and any subordination provisions required by the Company’s lenders and may be prepaid at the election of the Company to the extent permitted by the Company’s loan agreements and related documents with the Company and its subsidiaries’ senior and subordinated lenders. 7.12.8 The Repurchase Option set forth in this Section 7.12 shall continue with respect to each Unit originally issued to a Member following any Transfer thereof (other than (x) a Transfer to the Investor and/or the Company pursuant to the repurchase provisions set forth in this Section 7.12, (y) a Transfer pursuant to the first refusal rights set forth in Section 7.2 or (z) a Transfer effected after the tenth anniversary of the Issue Date pursuant to Section 7.1); provided, that such Repurchase Option shall terminate effective immediately upon the consummation of a Public Offering with respect to the Company. 7.12.9 Any election by the Board or by the Company to purchase Units pursuant to this Section 7.12 shall be revocable by such Person (with respect to all or any portion of such Member’s the Common Units that are attributable to such Capital Commitment, subject to the limitations set forth in this Agreement. Thereafter, as of the last calendar day of each calendar quarter (together with the Initial Repurchase Date, each a “Repurchase Date”), the Company may offer, and such Member may submit a request for, the Company to repurchase all or any portion of such Member’s Profits Units that are attributable to such Capital Commitment, subject to the limitations set forth in this Agreement. For the avoidance of doubt, any Member who submits a request for the Company to repurchase all of its Units attributable to a Capital Commitment shall not be subject to the Reinvestment Plan, but rather shall be deemed to have made a Distribution Election with respect to such Capital Commitment. A Member submitting a partial repurchase request that holds Units subject to different Management Fee rates may elect which Units it wishes elected to be subject to such repurchase request. (bpurchased) To the extent the Company chooses to repurchase Units on a Repurchase Date, the Company shall only repurchase such Units as of the opening of such Repurchase Date. In order to have its Units repurchased as of a Repurchase Date, a Members shall be required to submit a repurchase request and required documentation no later than ninety (90) days at any time prior to the applicable Repurchase Date (the “Repurchase Request Period”). Repurchase requests shall be effected at a repurchase price equal closing of such purchase, without any liability whatsoever to the transaction price on the applicable Repurchase Date (which shall generally be equal to the Net Asset Value per Unit calculated as such Person in respect of the end of the calendar quarter applicable to applicable Repurchase Date. (c) The total amount of aggregate repurchases of Units from Members as of any Repurchase Date shall be limited to no more than 5% of the aggregate Net Asset Value of the Units as of such Repurchase Date, subject to increase by the Company as determined in its sole discretion. (d) In the event the Company determines to repurchase some but not all of the Units submitted for repurchase during any calendar quarter, Units submitted for repurchase during such calendar quarter shall be repurchased on a pro rata basis among such Members who submitted a repurchase request with respect to such calendar quarter. All unsatisfied repurchase requests shall roll over rights and be automatically resubmitted upon the recommencement of the repurchase plan set forth obligations in this Agreement and such resubmitted repurchase requests shall be satisfied prior to and without taking into account any subsequent repurchase requests (i.e., repurchases of Units will be made on a first-in, first-out basis)Section 7.12. (e) Repurchase requests received after the Repurchase Request Period, shall be executed, at the discretion of the Company, on the next available Repurchase Date at the repurchase price equal to the transaction price applicable such next available Repurchase Date. (f) Repurchase requests are irrevocable by the Members upon receipt by the Company, but such irrevocability may be waived in the Company’s sole discretion. (g) The Company may waive or reduce the Repurchase Request Period in its sole discretion and/or permit repurchases at other times in its sole discretion. (h) Repurchase proceeds shall typically be paid within forty-five (45) days after the Repurchase Date. In the event of a complete repurchase, at least 95% of the amount distributable to the Member shall be paid within forty-five (45) days after the Repurchase Date, and the remaining balance of the distribution shall be paid without interest (although the Company reserves the right to pay interest in its sole discretion) within a reasonable time following the completion of the Company’s audit for the Fiscal Year in which the repurchase occurs, subject to the right of the Company to establish reasonable reserves in the event that the Company is subject to a contingent liability at the time of the repurchase. (i) Notwithstanding anything to the contrary set forth in this Agreement, the Company shall not be permitted to repurchase all or any portion of a Member’s Units if the Company determines that such repurchase would itself cause a REIT qualification issue, cause the assets of the Company to be deemed to be “plan assets” for purposes of ERISA or Section 4975 of the Code or violate any other provision of this Agreement. (j) For the avoidance of doubt, while Members may request that the Company repurchase all or any portion of their Units pursuant to the repurchase plan upon the Company’s offer to repurchase such Units, the Company shall not be obligated to repurchase any Units and may choose to repurchase only some, or even none, of the Units that have been requested to be repurchased in any particular quarter, as determined in the sole discretion of the Company.

Repurchases of Units. (a) As of the last calendar day of the first calendar quarter that occurs after the expiration of the Lock-Up Period in respect of a Member’s Capital Commitment (the “Initial Repurchase Date”), the Company may offer, and such Member may submit a request for, the Company to repurchase all or any portion of such Member’s Units that are attributable to such Capital Commitment, subject to the limitations set forth in this Agreement. Thereafter, as of the last calendar day of each calendar quarter (together with the Initial Repurchase Date, each a “Repurchase Date”), the Company may offer, and such Member may submit a request for, the Company to repurchase all or any portion of such Member’s Units that are attributable to such Capital Commitment, subject to the limitations set forth in this Agreement. For the avoidance of doubt, any Member who submits a request for the Company to repurchase all of its Units attributable to a Capital Commitment shall not be subject to the Reinvestment Plan, but rather shall be deemed to have made a Distribution Election with respect to such Capital Commitment. A Member submitting a partial repurchase request that holds Units subject to different Management Fee rates may elect which Units it wishes to be subject to such repurchase request. (b) To the extent the Company chooses to repurchase Units on a Repurchase Date, the Company shall only repurchase such Units as of the opening of such Repurchase Date. In order to have its Units repurchased as of a Repurchase Date, a Members shall be required to submit a repurchase request and required documentation no later than ninety (90) days prior to the applicable Repurchase Date (the “Repurchase Request Period”). Repurchase requests shall be effected at a repurchase price equal to the transaction price on the applicable Repurchase Date (which shall generally be equal to the Net Asset Value per Unit calculated as of the end of the calendar quarter applicable to applicable Repurchase Date. (c) The total amount of aggregate repurchases of Units from Members as of any Repurchase Date shall be limited to no more than 5% of the aggregate Net Asset Value of the Units as of such Repurchase Date, subject to increase by the Company as determined in its sole discretion. (d) In the event the Company determines to repurchase some but not all of the Units submitted for repurchase during any calendar quarter, Units submitted for repurchase during such calendar quarter shall be repurchased on a pro rata basis among such Members who submitted a repurchase request with respect to such calendar quarter. All unsatisfied repurchase requests shall roll over and be automatically resubmitted upon the recommencement of the repurchase plan set forth in this Agreement and such resubmitted repurchase requests shall be satisfied prior to and without taking into account any subsequent repurchase requests (i.e., repurchases of Units will be made on a first-in, first-out basis). (e) Repurchase requests received after the Repurchase Request Period, shall be executed, at the discretion of the Company, on the next available Repurchase Date at the repurchase price equal to the transaction price applicable such next available Repurchase Date. (f) Repurchase requests are irrevocable by the Members upon receipt by the Company, but such irrevocability may be waived in the Company’s sole discretion.. Table of Contents (g) The Company may waive or reduce the Repurchase Request Period in its sole discretion and/or permit repurchases at other times in its sole discretion. (h) Repurchase proceeds shall typically be paid within forty-five (45) days after the Repurchase Date. In the event of a complete repurchase, at least 95% of the amount distributable to the Member shall be paid within forty-five (45) days after the Repurchase Date, and the remaining balance of the distribution shall be paid without interest (although the Company reserves the right to pay interest in its sole discretion) within a reasonable time following the completion of the Company’s audit for the Fiscal Year in which the repurchase occurs, subject to the right of the Company to establish reasonable reserves in the event that the Company is subject to a contingent liability at the time of the repurchase. (i) Notwithstanding anything to the contrary set forth in this Agreement, the Company shall not be permitted to repurchase all or any portion of a Member’s Units if the Company determines that such repurchase would itself cause a REIT qualification issue, cause the assets of the Company to be deemed to be “plan assets” for purposes of ERISA or Section 4975 of the Code or violate any other provision of this Agreement. (j) For the avoidance of doubt, while Members may request that the Company repurchase all or any portion of their Units pursuant to the repurchase plan upon the Company’s offer to repurchase such Units, the Company shall not be obligated to repurchase any Units and may choose to repurchase only some, or even none, of the Units that have been requested to be repurchased in any particular quarter, as determined in the sole discretion of the Company.

Repurchases of Units. 7.12.1 In the event (a) As in the case of a Management Holder, such Management Holder ceases (i) to be an Officer or (ii) to be employed by any of the last calendar day EIK Manager or its Subsidiaries for any reason or (b) in the case of a Management Holder or the EIK Manager, the Management Agreement is terminated for any reason, such Member’s Common Units and Profits Units (whether held by such Member or one or more of such Member’s respective Transferees) shall be subject to repurchase first by the Investor Group and second by the Company pursuant to the terms and conditions set forth in this Section 7.12 (the “Repurchase Option”)). 7.12.2 The purchase price for all such Common Units and Profits Units shall be equal to the Fair Market Value thereof on the date of such determination. Notwithstanding the foregoing, (i) in the event that the Management Holder ceases to be an Officer or employed by the EIK Manager or its Subsidiaries within twelve (12) months after the Issue Date as a result of either (A) resignation by such Management Holder other than for Good Reason or (B) termination for Cause, the purchase price for all such Common Units shall be the lower of the first calendar quarter Fair Market Value thereof and the Original Cost therefor and (ii) in the event that occurs the Management Holder ceases to be an Officer or employed by the EIK Manager or its Subsidiaries for Cause following the twelve (12) months after the Issue Date, the purchase price for all such Common Units shall be the Fair Market Value thereof. Notwithstanding anything to the contrary in the Warrant Agreements, the Company and each Member agree that if the Management Holder ceases to be an Officer or employed by the EIK Manager or its Subsidiaries within twelve (12) months after the Effective Date as a result of either (A) resignation by such Management Holder under circumstances where the Management Holder resigned without Good Reason or (B) was terminated for Cause by the Company and, in either case, the Company elects to exercise its Repurchase Option with respect to any Warrants, the applicable Management Holder will be entitled to receive the lower of (a) the Fair Market Value of his or her Warrant (based on the Common Units issuable thereunder, assuming cashless exercise of the Warrants pursuant to the terms thereof) or (b) the excess (if any) of the aggregate Original Cost for the Common Units issuable thereunder over the aggregate exercise price for such Common Units. 7.12.3 As soon as practicable after the Termination Date, but in any event within 30 days after the Termination Date, the Company shall give written notice (the “Investor Option Notice”) to the Investor setting forth the number of such Common Units and Profits Units subject to repurchase (the “Available Securities”) and the purchase price for the Available Securities. The members of the Investor Group shall have the right (but not the obligation) to exercise the Repurchase Option for all or a portion of the Available Securities by delivering written notice to the Company within 20 days after the Investor Option Notice has been given by the Company. As soon as practicable, and in any event within five days after the expiration of the Locklater of the initial 20-Up Period day offer period set forth above, the Company shall notify the Management Holder or EIK Manager as to the number of Common Units or Profits Units, as case may be, being purchased from such Management Holder or EIK Manager by the Investor Group, the aggregate consideration to be paid for such Common Units or Profits Units and the time and place for the closing of the repurchase, and shall expressly instruct the Member that if no notice of disagreement with respect to the determination of Fair Market Value is delivered to the Board within thirty (30) days in respect according with Section 9.3 the determination of a Member’s Capital Commitment the consideration for such Common Units or Profits Units shall be final and binding on such Member (the “Initial MH Investor Repurchase DateNotice”). 7.12.4 If for any reason the Investor Group does not elect to purchase all of the Units offered pursuant to the Repurchase Option, the Company may offershall have the right (but not the obligation) to exercise the Repurchase Option for all or a portion of the Units the Investor Group have not elected to purchase (the “Other Available Securities”) by delivering written notice (the “Company Repurchase Notice”) to the Management Holder within 60 days after the Company has determined that there will be Other Available Securities. The Company Repurchase Notice shall set forth the number of Common Units and Profits Units to be purchased from such Member, the aggregate consideration to be paid for such Units and the time and place for the closing of the repurchase, and shall expressly instruct such Member that if no notice of disagreement with respect to the determination of Fair Market Value is delivered to the Board within thirty (30) days in according with Section 9.3 the determination of the consideration for such Common Units and Profits Units shall be final and binding on such Management Holder. 7.12.5 The closing of the repurchase of the Units pursuant to the Repurchase Option shall take place on the date designated by the Company Repurchase Notice or the MH Investor Repurchase Notice, as applicable, which date shall be as soon as reasonably practicable after determination of the Fair Market Value of the Units subject to repurchase. Subject to Section 7.12.7, the Company and/or the Investor Group shall pay for the Units to be purchased pursuant to the Repurchase Option by delivery of a cashier’s or certified check or wire transfer of funds. At the closing, the Transferor of such Units being purchased shall deliver the certificate or certificates representing such Units (if such Units are certificated) to the purchaser or purchasers of such Units, accompanied by duly executed assignments. In addition, the purchasers of such Units hereunder shall be entitled to (x) receive customary representations and warranties from the sellers regarding such sale of securities (including representations and warranties regarding good title to such securities, free and clear of any liens or encumbrances, the Transferor’s authorization and/or capacity to sell such securities and that the agreement containing such representations and warranties is a valid and binding agreement, enforceable against such Transferor in accordance with its terms, without violation of any agreement, contract or other provision to which such Transferor is party) and (y) require that signatures be guaranteed by a national bank or reputable securities broker. 7.12.6 Upon delivery of the Company Repurchase Notice or the MH Investor Repurchase Notice, as applicable, then from and after such time, the holder of such Units from whom such securities are to be purchased shall cease to have any rights as a holder of such securities (other than the right to receive payment of such consideration in accordance with this Section 7.12), and such securities shall be deemed purchased in accordance with the applicable provisions hereof and the Company or the Investor Group, as the case may be, shall be deemed the owner(s) (of record and beneficially) and holder(s) of such securities, whether or not any certificate representing such Units has been delivered as required by this Agreement. 7.12.7 Notwithstanding anything to the contrary contained in this Agreement, all repurchases of Common Units or Profits Units, as the case may be from Members by the Company shall be subject to applicable restrictions contained in the Act and in the Company’s and its Subsidiaries’ debt and equity financing agreements (including any restricted payment covenant prohibiting direct or indirect distributions to the Company in order to effectuate such repurchase) (each such restriction, a “Restrictive Covenant”). If any such Restrictive Covenant prohibits the repurchase of Units of Members hereunder which the Company is otherwise entitled to make, the time periods provided in this Section 7.12 with respect to the repurchase shall be suspended, and the Company may make such repurchases as soon as it is permitted to do so under such Restrictive Covenants; provided, that the time periods set forth in this Section 7.12 shall resume and be in full force and effect from and after the date on which the Company is first able to effect such repurchases in compliance with the Restricted Covenants. In addition, if any such Restrictive Covenant prohibits the repurchase from a Member of Units hereunder with a cashier’s or certified check or wire transfer of funds, or if the Company otherwise does not have sufficient available cash, then the Company may submit make such repurchase of Units with a request forsubordinated promissory note, payable on the first day on which the Company is able to make cash payments in compliance with the Restrictive Covenants and/or has sufficient cash or other liquid assets to make such repurchase, as applicable, bearing interest (payable at maturity) at a simple rate per annum equal to the Base Rate (a “Subordinated Note”). Any Subordinated Note issued by the Company pursuant to this Section 7.12 shall be subject to any Restrictive Covenants and any subordination provisions required by the Company’s lenders and may be prepaid at the election of the Company to the extent permitted by the Company’s loan agreements and related documents with the Company and its subsidiaries’ senior and subordinated lenders. 7.12.8 The Repurchase Option set forth in this Section 7.12 shall continue with respect to each Unit originally issued to a Member following any Transfer thereof (other than (x) a Transfer to the Investor and/or the Company pursuant to the repurchase provisions set forth in this Section 7.12, (y) a Transfer pursuant to the first refusal rights set forth in Section 7.2 or (z) a Transfer effected after the tenth anniversary of the Issue Date pursuant to Section 7.1); provided, that such Repurchase Option shall terminate effective immediately upon the consummation of a Public Offering with respect to the Company. 7.12.9 Any election by the Board or by the Company to purchase Units pursuant to this Section 7.12 shall be revocable by such Person (with respect to all or any portion of such Member’s the Common Units that are attributable to such Capital Commitment, subject to the limitations set forth in this Agreement. Thereafter, as of the last calendar day of each calendar quarter (together with the Initial Repurchase Date, each a “Repurchase Date”), the Company may offer, and such Member may submit a request for, the Company to repurchase all or any portion of such Member’s Profits Units that are attributable to such Capital Commitment, subject to the limitations set forth in this Agreement. For the avoidance of doubt, any Member who submits a request for the Company to repurchase all of its Units attributable to a Capital Commitment shall not be subject to the Reinvestment Plan, but rather shall be deemed to have made a Distribution Election with respect to such Capital Commitment. A Member submitting a partial repurchase request that holds Units subject to different Management Fee rates may elect which Units it wishes elected to be subject to such repurchase request. (bpurchased) To the extent the Company chooses to repurchase Units on a Repurchase Date, the Company shall only repurchase such Units as of the opening of such Repurchase Date. In order to have its Units repurchased as of a Repurchase Date, a Members shall be required to submit a repurchase request and required documentation no later than ninety (90) days at any time prior to the applicable Repurchase Date (the “Repurchase Request Period”). Repurchase requests shall be effected at a repurchase price equal closing of such purchase, without any liability whatsoever to the transaction price on the applicable Repurchase Date (which shall generally be equal to the Net Asset Value per Unit calculated as such Person in respect of the end of the calendar quarter applicable to applicable Repurchase Date. (c) The total amount of aggregate repurchases of Units from Members as of any Repurchase Date shall be limited to no more than 5% of the aggregate Net Asset Value of the Units as of such Repurchase Date, subject to increase by the Company as determined in its sole discretion. (d) In the event the Company determines to repurchase some but not all of the Units submitted for repurchase during any calendar quarter, Units submitted for repurchase during such calendar quarter shall be repurchased on a pro rata basis among such Members who submitted a repurchase request with respect to such calendar quarter. All unsatisfied repurchase requests shall roll over rights and be automatically resubmitted upon the recommencement of the repurchase plan set forth obligations in this Agreement and such resubmitted repurchase requests shall be satisfied prior to and without taking into account any subsequent repurchase requests (i.e., repurchases of Units will be made on a first-in, first-out basis)Section 7.12. (e) Repurchase requests received after the Repurchase Request Period, shall be executed, at the discretion of the Company, on the next available Repurchase Date at the repurchase price equal to the transaction price applicable such next available Repurchase Date. (f) Repurchase requests are irrevocable by the Members upon receipt by the Company, but such irrevocability may be waived in the Company’s sole discretion. (g) The Company may waive or reduce the Repurchase Request Period in its sole discretion and/or permit repurchases at other times in its sole discretion. (h) Repurchase proceeds shall typically be paid within forty-five (45) days after the Repurchase Date. In the event of a complete repurchase, at least 95% of the amount distributable to the Member shall be paid within forty-five (45) days after the Repurchase Date, and the remaining balance of the distribution shall be paid without interest (although the Company reserves the right to pay interest in its sole discretion) within a reasonable time following the completion of the Company’s audit for the Fiscal Year in which the repurchase occurs, subject to the right of the Company to establish reasonable reserves in the event that the Company is subject to a contingent liability at the time of the repurchase. (i) Notwithstanding anything to the contrary set forth in this Agreement, the Company shall not be permitted to repurchase all or any portion of a Member’s Units if the Company determines that such repurchase would itself cause a REIT qualification issue, cause the assets of the Company to be deemed to be “plan assets” for purposes of ERISA or Section 4975 of the Code or violate any other provision of this Agreement. (j) For the avoidance of doubt, while Members may request that the Company repurchase all or any portion of their Units pursuant to the repurchase plan upon the Company’s offer to repurchase such Units, the Company shall not be obligated to repurchase any Units and may choose to repurchase only some, or even none, of the Units that have been requested to be repurchased in any particular quarter, as determined in the sole discretion of the Company.