Common use of Avoidance of “Publicly Traded Partnership” Status Clause in Contracts

Avoidance of “Publicly Traded Partnership” Status. (a) Except to the extent otherwise approved by the General Partner, each Limited Partner hereby represents that at least one of the following statements with respect to such Limited Partner is true and will continue to be true throughout the period during which such Limited Partner holds an interest in the Partnership: (i) Such Limited Partner is not a partnership, grantor trust, S corporation, disregarded entity, or other entity treated as a pass-through entity for United States federal income tax purposes; (ii) With regard to each Tax Beneficial Owner of such Limited Partner, the principal purposes for the establishment or use of such Limited Partner do not include avoidance of the 100 partner limitation set forth in Treasury Regulation Section 1.7704-1(h)(1)(ii); or (iii) With regard to each Tax Beneficial Owner of such Limited Partner, not more than 50% of the value of such Tax Beneficial Owner’s interest in such Limited Partner is attributable to such Limited Partner’s interest in the Partnership. (b) If a Limited Partner’s representation pursuant to Section 10.11(a) shall at any time fail to be true, such Limited Partner shall promptly (and in any event within 10 days) notify the General Partner of such fact and shall promptly thereafter deliver to the General Partner any information regarding such Limited Partner and its Tax Beneficial Owners reasonably requested by counsel to the Partnership for purposes of determining the number of the Partnership’s partners within the meaning of Treasury Regulation Section 1.7704-1(h). (c) A Limited Partner that, with the approval of the General Partner, is not required to make the full representation set forth in Section 10.11(a) shall promptly deliver to the General Partner any information regarding such Limited Partner and its Tax Beneficial Owners reasonably requested by counsel to the Partnership for purposes of determining the number of the Partnership’s partners within the meaning of Treasury Regulation Section 1.7704-1(h) and shall promptly (and in any event within 10 days) notify the General Partner of any change in the status of such Limited Partner or its Tax Beneficial Owners that may be relevant to such determination. (d) Each Limited Partner hereby acknowledges that the General Partner will rely upon such Limited Partner’s representations, notices and other information as set forth in this Section 10.11 for purposes of determining whether proposed Transfers of Partnership interests may cause the Partnership to be treated as a “publicly traded partnership” within the meaning of Section 7704 of the Internal Revenue Code and that failure by a Limited Partner to satisfy its obligations under this Section 10.11 may cause the Partnership to be treated as a corporation for United States federal, State and local tax purposes.

Avoidance of “Publicly Traded Partnership” Status. The General Partner shall (a) Except use commercially reasonable efforts (as determined by it in its sole discretion exercised in good faith) to monitor the extent otherwise approved transfers of interests in the Partnership to determine (i) if such interests are being traded on an “established securities market” or a “secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code and (ii) whether additional transfers of interests would result in the Partnership being unable to qualify for at least one of the “safe harbors” set forth in Regulations Section 1.7704-1 (or such other guidance subsequently published by the General PartnerIRS setting forth safe harbors under which interests will not be treated as “readily tradable on a secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code) (the “Safe Harbors”) and (b) take such steps as it believes are commercially reasonable and appropriate (as determined by it in its sole discretion exercised in good faith) to prevent any trading of interests or any recognition by the Partnership of transfers made on such markets and, each Limited Partner hereby represents except as otherwise provided herein, to insure that at least one of the following statements with respect to such Limited Partner Safe Harbors is true and will continue to be true throughout the period during which such Limited Partner holds an interest in the Partnership: (i) Such Limited Partner is not a partnershipmet; provided, grantor trusthowever, S corporation, disregarded entity, or other entity treated as a pass-through entity for United States federal income tax purposes; (ii) With regard to each Tax Beneficial Owner of such Limited Partner, the principal purposes for the establishment or use of such Limited Partner do not include avoidance of the 100 partner limitation set forth in Treasury Regulation Section 1.7704-1(h)(1)(ii); or (iii) With regard to each Tax Beneficial Owner of such Limited Partner, not more than 50% of the value of such Tax Beneficial Owner’s interest in such Limited Partner is attributable to such Limited Partner’s interest in the Partnership. that this clause (b) If a Limited Partner’s representation pursuant shall cease to Section 10.11(aapply after the end of the Applicable Year if (1) shall at any time fail to be true, such Limited Partner shall promptly (and in any event within 10 days) notify the General Partner classification of such fact and shall promptly thereafter deliver to the General Partner any information regarding such Limited Partner and its Tax Beneficial Owners reasonably requested by counsel to the Partnership for purposes of determining the number of the Partnership’s partners within the meaning of Treasury Regulation Section 1.7704-1(h). (c) A Limited Partner that, with the approval of the General Partner, is not required to make the full representation set forth in Section 10.11(a) shall promptly deliver to the General Partner any information regarding such Limited Partner and its Tax Beneficial Owners reasonably requested by counsel to the Partnership for purposes of determining the number of the Partnership’s partners within the meaning of Treasury Regulation Section 1.7704-1(h) and shall promptly (and in any event within 10 days) notify the General Partner of any change in the status of such Limited Partner or its Tax Beneficial Owners that may be relevant to such determination. (d) Each Limited Partner hereby acknowledges that the General Partner will rely upon such Limited Partner’s representations, notices and other information as set forth in this Section 10.11 for purposes of determining whether proposed Transfers of Partnership interests may cause the Partnership to be treated as a “publicly traded partnership” within the meaning of Section 7704 7704(b) of the Internal Revenue Code and that failure by a Limited Partner the regulations promulgated thereunder could not reasonably be expected to satisfy its obligations under this Section 10.11 may cause the Partnership to be treated taxable as a corporation for United States federalfederal income tax purposes and (2) the General Partner receives an opinion of nationally recognized counsel at the beginning of the relevant taxable year to the effect that, State based on its actual and local tax purposesproposed method of operation, the Partnership will meet the gross income requirements of Section 7704(c)(2) with respect to such taxable year, which opinion will be subject to customary exceptions, assumptions and qualifications and based on customary representations contained in an officer’s certificate from the Partnership, executed by a person with the knowledge necessary to make the representations contained therein.