Eligible Independent Contractor. (a) At the effective time of this Agreement, Operator shall qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “Code”). To that end:
(i) during the Operating Term, Operator shall not permit wagering activities to be conducted at or in connection with the Hotels;
(ii) during the Operating Term, Operator shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than 35% of the shares of Condor Hospitality Trust, Inc.;
(iii) during the Operating Term, no more than 35% of the total combined voting power of Operator’s outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be owned, directly or indirectly, by one or more persons owning 35% or more of the outstanding stock of Condor Hospitality Trust, Inc.; and
(iv) At the effective time, Operator shall be actively engaged in the trade or business of operating “qualified lodging facilities” (defined below) for a person who is not a “related person” within the meaning of Section 856(d)(9)(F) of the Code with respect to the Parent or Lessee (“Unrelated Persons”). In order to meet this requirement, Operator agrees that it (i) shall derive at least 10% of both its revenue and profit from operating “qualified lodging facilities” for Unrelated Persons and (ii) shall comply with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with the meaning of such Code Section.
(b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc.
(c) Operator shall not sublet any ...
Eligible Independent Contractor. Manager agrees that, as of the date hereof, it is an eligible independent contractor under Section 856(d) of the Internal Revenue Code, and further agrees that it shall maintain such status to the extent it is able to do so, acknowledging that events outside of Manager's control may result in an overlap of ownership between Manager and Lessor or Lessee which could affect Manager's independent contractor status. Lessor, Manager and Lessee agree to cooperate in good faith to ensure that Manager retains such status. This covenant shall apply for so long as the Inn is owned by Lessor (or another direct or indirect wholly-owned subsidiary of Apple Hospitality pursuant to a permitted assignment) and leased to Lessee (or another direct or indirect wholly-owned subsidiary of Apple Hospitality pursuant to a permitted assignment) as part of an ownership structure that is subject to REIT tax requirements.
Eligible Independent Contractor. Management Company is and shall at all times be an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended from time to time (the “Code”) (and taking into account the restrictions on ownership of the Management Company by shareholders of CHP Healthcare Properties, Inc., and restrictions on ownership of CHP Healthcare Properties, Inc., by owners of the Management Company set forth in Section 856(d)(3)), and, if the IRS determines that independent living facilities are considered “health care facilities,” Management Company will and shall cause the Facility to be managed in such a manner so that it qualifies as a “qualified health care facility” within the meaning of Section 856(e)(6)(D) of the Code at all times. In the event that Tenant reasonably concludes that the terms of this Agreement will have any effect as to cause the rent under Tenant’s lease of the Facility to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, Management Company hereby agrees to enter into an amendment to this Agreement as proposed by Tenant modifying such terms in such a way as to cause rent under Tenant’s lease of the Facility to so qualify as “rent from real property” in the reasonable opinion of Tenant and its counsel; provided however, no such modifications shall affect the amount of Management Fees or the practical realization of the rights and benefits of the Management Company hereunder.
Eligible Independent Contractor a) Manager hereby represents and warrants that, as of the Effective Date, Manager satisfies the requirements and conditions of being an Eligible Independent Contractor.
b) Manager hereby covenants that, at all times during the Operating Term, it shall maintain its status as an Eligible Independent Contractor and shall not do, or omit to do, anything that would cause Manager to no longer meet the requirements of being an Eligible Independent Contractor.
c) Within five (5) business days of Owner’s request, Manager shall deliver to Owner a certificate, executed by an executive officer of Manager, addressed to the NorthStar REIT and, and in the form attached hereto as Schedule E, confirming that either (i) Manager is, and has at all times from and after the date of this Agreement been, in compliance with the terms of this Section 2.4, (ii) Manager is in compliance with the terms of this Section 2.4 and has timely cured any past failure to comply with the terms of this Section 2.4, or (iii) Manager is using commercially reasonable efforts to cure any failure to comply with the terms of this Section 2.4.
d) If there shall be an amendment or modification to Section 856(d)(9) of the Code after the date of this Agreement that adversely impacts Manager’s qualification as an Eligible Independent Contractor under the Code, Manager shall cooperate reasonably with Owner, the NorthStar REIT and their respective Affiliates and shall exercise reasonable efforts to effectuate solutions or “workarounds” to address any REIT qualification concerns under the Code of the NorthStar REIT and its Affiliates arising out of any such amendment or modification; provided that (i) to the extent reasonably practicable, any such changes shall be structured so as to not have any negative impact on Manager in any material respect, and (ii) Owner shall bear one hundred percent (100%) of the cost (including legal fees for Manager) in connection with the negotiation and documentation of any such amendments or modifications.
e) Manager shall notify Owner within five (5) business days of any matter, event, transaction or other circumstance that, to Manager’s knowledge, could reasonably be expected to (i) violate the terms of this Section 2.4 and (ii) jeopardize or threaten the qualification or status or legal compliance with any government regulations relating to the operation or qualification as a real estate investment trust for United States federal tax purposes, of the NorthStar REIT or its A...
Eligible Independent Contractor. The term “Eligible Independent Contractor” shall mean any person or entity designated as manager of the Facility, but only if (a) such person or entity does not own (either actually or constructively through related parties, as determined under Section 856(d)(3) of the Internal Revenue Code), directly or indirectly, more than thirty five percent (35%) of the shares of CNL Healthcare Trust, Inc., (b) not more than thirty five percent (35%) of the total combined voting power of such person or entity’s stock or thirty five percent (35%) of the total shares of all classes of stock of such person or entity (in the case of a corporation), or not more than thirty five percent (35%) of the interests in such person or entity’s assets or net profits (in the case of entities other than corporations) is owned (again, either actually or constructively through related parties, as determined under Section 856(d)(3) of the Internal Revenue Code), by CNL Healthcare Trust, Inc., and (c) at the time such person or entity enters into the Management Agreement with respect to the Facility to operate the same, such person or entity is actively engaged in the trade or business of operating Qualified Health Care Properties for any person or entity who is not a “related person” (within the meaning of Section 856(d)(9)(A) of the Internal Revenue Code) with respect to the Tenant and/or any of the Tenant’s Affiliates.
Eligible Independent Contractor. Management Company is and shall at all times be an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended from time to time (the “Code”) (and taking into account the restrictions on ownership of Management Company by shareholders of CNL Healthcare Properties II, Inc., a Maryland corporation (“CNL REIT”), and restrictions on ownership of CNL REIT by owners of Management Company set forth in Section 856(d)(3)), Management Company will and shall cause the Community to be managed in such a manner so that it qualifies as a “qualified health care Community” within the meaning of Section 856(e)(6)(D) of the Code at all times. In the event that Tenant reasonably concludes that the terms of this Agreement will have any effect as to cause the rent under Tenant’s lease of the Community to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Code, Management Company hereby agrees to enter into an amendment to this Agreement as proposed by Tenant modifying such terms in such a way as to cause rent under Tenant’s lease of the Community to so qualify as “rent from real property” in the reasonable opinion of Tenant and its counsel; provided however, no such modifications shall affect the amount of Management Fees or the practical realization of the rights and benefits of Management Company hereunder.
Eligible Independent Contractor. Manager agrees that, as of the date hereof, it is an eligible independent contractor under Section 856(d) of the Internal Revenue Code, and further agrees that it shall maintain such status to the extent it is able to do so, acknowledging that events outside of Manager’s control may result in an overlap of ownership between Manager and Lessor or Lessee which could affect Manager’s independent contractor status. Lessor, Manager and Lessee agree to cooperate in good faith to ensure that Manager retains such status. This covenant shall apply for so long as the Inn is owned by Lessor and leased to Lessee (or another direct or indirect wholly-owned subsidiary of Apple Five pursuant to a permitted assignment).
Eligible Independent Contractor. Manager agrees that, as of the date hereof, it is an eligible independent contractor under Section 856(d) of the Internal Revenue Code, and further agrees that it will maintain such status to the extent it can do so, acknowledging that events outside of Manager’s control may result in an overlap of ownership between Manager and Landlord or Tenant which could affect Manager’s independent contractor status. Landlord, Manager and Tenant will cooperate in good faith to ensure that Manager retains such status. This covenant will apply for so long as the Leased Premises is owned by Landlord (or another direct or indirect wholly-owned subsidiary of Aspen OP pursuant to a permitted assignment) and leased to Tenant (or another direct or indirect wholly-owned subsidiary of Aspen OP under a permitted assignment) as part of an ownership structure that is subject to REIT tax requirements.
Eligible Independent Contractor. A management company that meets all of the following requirements:
(a) The management company does not own, directly or indirectly, more than 35% of the outstanding stock of Highland Hospitality Corporation.
(b) If the management company is a corporation, no more than 35% of the total combined voting power of its outstanding stock (or 35% of the total shares of all classes of its outstanding stock) or, if it is not a corporation, no more than 35% of the ownership interest in its assets or net profits is owned, directly or indirectly, by one or more Persons owning 35% or more of the outstanding stock of Highland Hospitality Corporation.
(c) Neither Highland Hospitality Corporation, Lessor, Lessee, nor any Affiliate thereof derives any income from the management company.
(d) At the time that the management company enters into a management agreement with Lessee to operate the Leased Property, the management company (or any “related person” within the meaning of Section 856(d)(9)(F) of the Code) is actively engaged in the trade or business of operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code for any Person who is not a “related person” within the meaning of Section 856(d)(9)(F) of the Code with respect to Highland Hospitality Corporation or Lessee (an “Unrelated Person”). For purposes of determining whether the requirement of this paragraph (d) has been met, a management company shall be treated as being actively engaged in such a trade or business if the management company (i) derives at least 10% of both its profits and revenue from operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code for Unrelated Persons or (ii) complies with any regulations or other administrative guidance under Section 856(d)(9) of the Code that provide a “safe harbor “ rule with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” within the meaning such Code section.
Eligible Independent Contractor. During the Term of this Agreement, Manager shall at all times qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Code (as may be amended or modified from time to time) (“
