Common use of Excess Units Clause in Contracts

Excess Units. (a) Any Person who acquires or attempts to acquire Units in violation of Section 7.03, or any Person who is a transferee such that Excess Units result under Section 7.03(d), shall immediately give written notice or, in the event of a proposed or attempted Transfer, shall give at least fifteen (15) days prior written notice to the Company of such event and shall provide to the Company such other information as the Company may request in order to determine the effect, if any, of such Transfer or attempted Transfer on the Company’s status as a REIT. (b) Upon any purported Transfer that results in Excess Units, such Excess Units shall be deemed to have been transferred to the Excess Unit Trustee, as trustee of the Excess Unit Trust for the exclusive benefit of the Charitable Beneficiary. Excess Units so held in trust shall be issued and outstanding Units of the Company. The Purported Beneficial Transferee shall have no rights in such Excess Units except as provided in this section. (c) Any distributions (whether as dividends, distributions upon liquidation, dissolution or winding up or otherwise) on Excess Units shall be paid to the Excess Unit Trust for the benefit of the Charitable Beneficiary. Upon liquidation, dissolution or winding up, the Purported Record Transferee shall receive the lesser of (a) the amount of any distribution made upon liquidation, dissolution or winding up or (b) the price paid by the Purported Record Transferee for the Units, or if the Purported Record Transferee did not give value for the Units, the market price of the Units on the day of the event causing the Units to be held in trust. Any such dividend paid or distribution paid to the Purported Record Transferee in excess of the amount provided in the preceding sentence prior to the discovery by the Company that the Units with respect to which the dividend or distribution was made had been exchanged for Excess Units shall be repaid by the Purported Record Transferee to the Excess Unit Trust for the benefit of the Charitable Beneficiary. (d) The Excess Unit Trustee shall be entitled to vote the Excess Units for the benefit of the Charitable Beneficiary on any matter. Subject to Delaware law, any vote taken by a Purported Record Transferee prior to the discovery by the Company that the Excess Units were held in trust shall be rescinded ab initio. The owner of the Excess Units shall be deemed to have given an irrevocable proxy to the Excess Unit Trustee to vote the Excess Units for the benefit of the Charitable Beneficiary. (e) Excess Units shall be transferable only as provided in this Section 7.04. At the direction of the Company, the Excess Unit Trustee shall transfer the Units held in the Excess Unit Trust to a person whose ownership of the Units shall not violate the restrictions set forth in Section 7.03. Such transfer shall be made within sixty (60) days after the latest of (x) the date of the Transfer which resulted in such Excess Units and (y) the date the Company determines in good faith that a Transfer resulting in Excess Units has occurred, if the Company does not receive a notice of such Transfer pursuant to Section 7.03. If such a transfer is made, the interest of the Charitable Beneficiary shall terminate and proceeds of the sale shall be payable to the Purported Record Transferee and to the Charitable Beneficiary. The Purported Record Transferee shall receive the lesser of the price paid by the Purported Record Transferee for the Units or, if the Purported Record Transferee did not give value for the Units, the market price of the Units on the day of the event causing the Units to be held in trust, and the price received by the Excess Unit Trust from the sale or other disposition of the Units. Any proceeds in excess of the amount payable to the Purported Record Transferee shall be paid to the Charitable Beneficiary. Prior to any transfer of any Excess Units by the Excess Unit Trustee, the Company must have waived in writing its repurchase rights under this Agreement. It is expressly understood that the Purported Record Transferee may enforce the non-transferability provisions of this section against the Charitable Beneficiary. (f) If any of the foregoing restrictions on transfer of Excess Units is determined to be void, invalid or unenforceable by any court of competent jurisdiction, then the Purported Record Transferee may be deemed, at the option of the Company, to have acted as an agent of the Company in acquiring such Excess Units and to hold such Excess Units on behalf of the Company. (g) Excess Units shall be deemed to have been offered for sale to the Company, or its designee, at a price per Unit equal to the lesser of the price per Unit in the transaction that created such Excess Units (or, in the case of a devise, gift or other transaction in which no value was given for such Excess Units, the market price at the time of such devise, gift or other transaction) and the market price of the Units to which such Excess Units relates on the date the Company, or its designee, accepts such offer (the “Excess Unit Redemption Price”). The Company shall have the right to accept such offer for a period of ninety (90) days after the later of (x) the date of the Transfer which resulted in such Excess Units and (y) the date the Company determines in good faith that a Transfer resulting in Excess Units has occurred, if the Company does not receive a notice of such Transfer pursuant to this section but in no event later than a permitted Transfer pursuant to and in compliance with the terms of this section. Unless the General Partner determines that it is in the interests of the Company to make earlier payments of all of the amount determined as the Excess Unit Redemption Price per Unit in accordance with the preceding sentence, the Excess Unit Redemption Price may be payable at the option of the Company at any time up to but not later than one year after the date the Company accepts the offer to purchase the Excess Units. In no event shall the Company have an obligation to pay interest to the Purported Record Transferee.

Excess Units. (a) Any Person who acquires or attempts to acquire Units in violation of Section 7.03, or any Person who is a transferee such that Excess Units result under Section 7.03(d), shall immediately give written notice or, in the event of a proposed or attempted Transfer, shall give at least fifteen (15) days prior written notice to the Company of such event and shall provide to the Company such other information as the Company may request in order to determine the effect, if any, of such Transfer or attempted Transfer on the Company’s status as a REIT. (b) Upon any purported Transfer that results in Excess Units, such Excess Units shall be deemed to have been transferred to the Excess Unit Trustee, as trustee of the Excess Unit Trust for the exclusive benefit of the Charitable Beneficiary. Excess Units so held in trust shall be issued and outstanding Units of the Company. The Purported Beneficial Transferee shall have no rights in such Excess Units except as provided in this section. (c) Any distributions (whether as dividends, distributions upon liquidation, dissolution or winding up or otherwise) on Excess Units shall be paid to the Excess Unit Trust for the benefit of the Charitable Beneficiary. Upon liquidation, dissolution or winding up, the Purported Record Transferee shall receive the lesser of (a) the amount of any distribution made upon liquidation, dissolution or winding up or (b) the price paid by the Purported Record Transferee for the Units, or if the Purported Record Transferee did not give value for the Units, the market price of the Units on the day of the event causing the Units to be held in trust. Any such dividend paid or distribution paid to the Purported Record Transferee in excess of the amount provided in the preceding sentence prior to the discovery by the Company that the Units with respect to which the dividend or distribution was made had been exchanged for Excess Units shall be repaid by the Purported Record Transferee to the Excess Unit Trust for the benefit of the Charitable Beneficiary. (d) The Excess Unit Trustee shall be entitled to vote the Excess Units for the benefit of the Charitable Beneficiary on any matter. Subject to Delaware law, any vote taken by a Purported Record Transferee prior to the discovery by the Company that the Excess Units were held in trust shall be rescinded ab initio. The owner of the Excess Units shall be deemed to have given an irrevocable proxy to the Excess Unit Trustee to vote the Excess Units for the benefit of the Charitable Beneficiary. (e) Excess Units shall be transferable only as provided in this Section 7.04. At the direction of the Company, the Excess Unit Trustee shall transfer the Units held in the Excess Unit Trust to a person whose ownership of the Units shall not violate the restrictions set forth in Section 7.03. Such transfer shall be made within sixty (60) days after the latest of (x) the date of the Transfer which resulted in such Excess Units and (y) the date the Company determines in good faith that a Transfer resulting in Excess Units has occurred, if the Company does not receive a notice of such Transfer pursuant to Section 7.03. If such a transfer is made, the interest of the Charitable Beneficiary shall terminate and proceeds of the sale shall be payable to the Purported Record Transferee and to the Charitable Beneficiary. The Purported Record Transferee shall receive the lesser of the price paid by the Purported Record Transferee for the Units or, if the Purported Record Transferee did not give value for the Units, the market price of the Units on the day of the event causing the Units to be held in trust, and the price received by the Excess Unit Trust from the sale or other disposition of the Units. Any proceeds in excess of the amount payable to the Purported Record Transferee shall be paid to the Charitable Beneficiary. Prior to any transfer of any Excess Units by the Excess Unit Trustee, the Company must have waived in writing its repurchase rights under this Agreement. It is expressly understood that the Purported Record Transferee may enforce the non-transferability provisions of this section against the Charitable Beneficiary. (f) If any of the foregoing restrictions on transfer of Excess Units is determined to be void, invalid or unenforceable by any court of competent jurisdiction, then the Purported Record Transferee may be deemed, at the option of the Company, to have acted as an agent of the Company in acquiring such Excess Units and to hold such Excess Units on behalf of the Company. (g) Excess Units shall be deemed to have been offered for sale to the Company, or its designee, at a price per Unit equal to the lesser of the price per Unit in the transaction that created such Excess Units (or, in the case of a devise, gift or other transaction in which no value was given for such Excess Units, the market price at the time of such devise, gift or other transaction) and the market price of the Units to which such Excess Units relates on the date the Company, or its designee, accepts such offer (the “Excess Unit Redemption Price”). The Company shall have the right to accept such offer for a period of ninety (90) days after the later of (x) the date of the Transfer which resulted in such Excess Units and (y) the date the Company determines in good faith that a Transfer resulting in Excess Units has occurred, if the Company does not receive a notice of such Transfer pursuant to this section but in no event later than a permitted Transfer pursuant to and in compliance with the terms of this section. Unless the General Partner determines that it is in the interests of the Company to make earlier payments of all of the amount determined as the Excess Unit Redemption Price per Unit in accordance with the preceding sentence, the Excess Unit Redemption Price may be payable at the option of the Company at any time up to but not later than one year after the date the Company accepts the offer to purchase the Excess Units. In no event shall the Company have an obligation to pay interest to the Purported Record Transferee.the