Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 12 contracts

Samples: Agreement of Limited Partnership (Wheeler Real Estate Investment Trust, Inc.), Limited Partnership Agreement (Wheeler Real Estate Investment Trust, Inc.), Limited Partnership Agreement (American Assets Trust, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 10 contracts

Samples: Agreement of Limited Partnership (Hudson Pacific Properties, L.P.), Asset Purchase Agreement (Hudson Pacific Properties, Inc.), Limited Partnership Agreement (GTJ REIT, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four ~~and nine-tenths~~ percent (~~4.9~~4%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 8 contracts

Samples: Limited Partnership Agreement (Rexford Industrial Realty, Inc.), Limited Partnership Agreement (Rexford Industrial Realty, Inc.), Limited Partnership Agreement (Rexford Industrial Realty, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to ~~any REIT~~ the Parent, the General Partner or ~~its~~ the Parent Limited Partner or their trustees, officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the ~~REIT Partner~~ Parent for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to ~~such REIT~~ the Parent, the General Partner or the Parent Limited Partner, shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) ~~four and nine-tenths percent (~~4.9%) % of the ~~REIT Partner~~Parent’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the ~~REIT Partner~~ Parent from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) ~~twenty-four percent (~~24%) % of the ~~REIT Partner~~Parent’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the ~~REIT Partner~~ Parent from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the ~~REIT Partner~~Parent’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableYear. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent ~~any REIT Partner~~ the Parent from failing to qualify as a REIT under the Code by reason of ~~such REIT Partner~~the Parent’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 7 contracts

Samples: Agreement of Limited Partnership (Extra Space Storage Inc.), Limited Partnership Agreement, Agreement of Limited Partnership (Extra Space Storage Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four ~~and nine-tenths~~ percent (~~4.9~~4%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Code Section ~~856(c)(5)(G) of the Code~~856(c)) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Code Section ~~856(c)(5)(G) of the Code~~856(c)); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Code Section ~~856(c)(5)(G) of the Code~~856(c)) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Code Section ~~856(c)(5)(G) of the Code~~856(c)); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 6 contracts

Samples: Contribution Agreement (City Office REIT, Inc.), Contribution Agreement (City Office REIT, Inc.), Limited Partnership Agreement (City Office REIT, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner (or, if the REIT Partner is a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) of a REIT, to such REIT) for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i1) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s (or, if the REIT Partner is a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) of a REIT, such REIT’s) total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner (or, if the REIT Partner is a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) of a REIT, by such REIT) from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii2) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s (or, if the REIT Partner is a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) of a REIT, such REIT’s) total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner (or, if the REIT Partner is a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) of a REIT, by such REIT) from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s (or, if the REIT Partner is a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) of a REIT, such REIT’s) ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableFiscal Year. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT Partner (or, if the REIT Partner is a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) of a REIT, such REIT) from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 6 contracts

Samples: Limited Partnership Agreement (Aimco Properties L.P.), Limited Partnership Agreement (Aimco OP L.P.), Limited Partnership Agreement (Apartment Income REIT Corp.)

Limitation to Preserve REIT Status. ~~Notwithstanding anything else in this Agreement, to~~ To the extent that any amount paid or credited to the ~~amount to be paid, credited, distributed~~ Parent or ~~reimbursed by~~ the ~~Partnership to any REIT~~ General Partner or ~~its~~ any of their officers, directors, employees or ~~agents, whether as a reimbursement, fee, expense~~ agents pursuant to Sections 7.4 or ~~indemnity (a “REIT Payment”),~~ 7.7 would constitute gross income to the ~~REIT Partner~~ Parent for purposes of ~~Code Section~~ Sections 856(c)(2) or 856(c)(3) of the Code ~~Section 856(c)(3),~~ (a “General Partner Payment”) then, notwithstanding any other provision of this Agreement, the amount of such ~~REIT Payments, as selected by the~~ General Partner ~~in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced~~ Payment for any ~~Partnership~~ Fiscal Year ~~so that the REIT Payments, as so reduced, for or with respect to such REIT Partner~~ shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) ~~four and nine-tenths percent (4.9%)~~ 4% of the ~~REIT Partner~~Parent’s total gross income (within the meaning of Section 856(c)(3) of the Code but ~~excluding~~ not including the amount of any ~~REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~General Partner Payments) for the ~~Partnership~~ Fiscal Year ~~that~~ which is described in subsections (A) ~~through~~ though (IH) of ~~Code~~ Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) of the Code) derived by the ~~REIT~~ Parent from sources other than those described in subsections (A) through (H) of Section 856(c)(2) of the Code (but not including the amount of any General Partner Payments); or (ii) an amount equal to the excess, if any of (a) 24% of the Parent’s total gross income (but not including the amount of any General Partner Payments) for the Fiscal Year which is described in subsections (A) through (I) of Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(3) of the Code but not including the amount of any General Partner Payments) derived by the Parent from sources other than those described in subsections (A) through (I) of ~~Code~~ Section ~~856(c)(2) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G~~856(c)(3) of the Code); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); provided, however, that ~~REIT~~ General Partner Payments in excess of the amounts set forth in ~~clauses~~ subparagraphs (i) and (ii) above may be made if the ~~General Partner~~Parent, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ would not adversely affect the ~~REIT Partner~~Parent’s ability to qualify as a REIT. To the extent ~~that REIT~~ General Partner Payments may not be made in a ~~Partnership~~ given Fiscal Year ~~as a consequence of~~ due to the ~~limitations set forth in this Section 15.12~~foregoing limitations, such ~~REIT~~ General Partner Payments shall carry over and ~~shall~~ be treated as arising in the following ~~Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT,~~ year; provided, however, that ~~any~~ such ~~REIT Payment~~ amounts shall not ~~be carried~~ carry over for more than ~~three Partnership~~ five (5) Fiscal Years, and ~~any~~ if not paid within such ~~remaining~~ five (5) Fiscal Year period, shall expire; and provided further that (i) as General Partner Payments are made, such payments shall ~~no longer~~ be ~~due and payable. The purpose of the limitations contained in this Section 15.12 is~~ applied first to ~~prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items~~carry over amounts outstanding, ~~including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership~~if any, and ~~this Section 15.12~~ (ii) with respect to carry over amounts for more than one Fiscal Year, such payments shall be ~~interpreted and~~ applied to ~~effectuate such purpose~~the earliest Fiscal Year first.

Appears in 5 contracts

Samples: Limited Partnership Agreement (Freehold Properties, Inc.), Limited Partnership Agreement (MedEquities Realty Trust, Inc.), Limited Partnership Agreement (Education Realty Operating Partnership L P)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, ~~as a condition precedent~~reasonably determines, ~~obtains an opinion~~ on the advice of ~~tax counsel~~ counsel, that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableFiscal Year(s). The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 5 contracts

Samples: Limited Partnership Agreement (Arizona Land Income Corp), Partnership Agreement (Arizona Land Income Corp), Limited Partnership Agreement (Arizona Land Income Corp)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the ~~Partnership~~ Company to any REIT ~~Partner~~ Member or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT ~~Partner~~ Member for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the ~~General Partner~~ Managing Member in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT ~~Partner~~ Member shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) four ~~and nine-tenths~~ percent (~~4.9~~4%) of the REIT ~~Partner~~Member’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); or (iib) an amount equal to the excess, if any, of (ai) twenty-four percent (24%) of the REIT ~~Partner~~Member’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (ia) and (iib) above may be made if the ~~General Partner~~Managing Member, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT ~~Partner~~Member’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following ~~Partnership~~ Fiscal Year if such carry over does not adversely affect the REIT ~~Partner~~Member’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three ~~Partnership~~ Fiscal Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT ~~Partner~~ Member from failing to qualify as a REIT under the Code by reason of such REIT ~~Partner~~Member’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the ~~Partnership~~Company, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 4 contracts

Samples: Operating Agreement (Healthpeak Properties, Inc.), Limited Liability Company Agreement (Kimco Realty OP, LLC), Limited Liability Company Agreement (Kimco Realty Corp)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership Year~~ fiscal year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: : (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, ~~as a condition precedent~~reasonably determines, ~~obtains an opinion~~ on the advice of ~~tax counsel~~ counsel, that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership Year~~ fiscal year as a consequence of the limitations set forth ~~in this Section 15.12~~herein, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payablefiscal year(s). The purpose of the limitations contained ~~in this Section 15.12~~ herein is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ shall be interpreted and applied to effectuate such purpose.

Appears in 4 contracts

Samples: Master Upreit Formation Agreement (American Housing Income Trust, Inc.), Master Upreit Formation Agreement (American Housing Income Trust, Inc.), Master Upreit Formation Agreement (American Housing Income Trust, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s 's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableYear. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s 's share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 4 contracts

Samples: Agreement of Limited Partnership (Affordable Residential Communities Inc), Limited Partnership Agreement (Northstar Capital Investment Corp /Md/), Agreement of Limited Partnership (Arbor Realty Trust Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its sole and absolute discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 4 contracts

Samples: Limited Partnership Agreement (Brixmor Property Group Inc.), Limited Partnership Agreement (Brixmor Property Group Inc.), Limited Partnership Agreement (Spirit Realty Capital, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, with respect to any period in which the General Partner has elected to be treated as a REIT for federal income tax purposes, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 4 contracts

Samples: Limited Partnership Agreement (CoreSite Realty Corp), Limited Partnership Agreement (CoreSite Realty Corp), Agreement of Limited Partnership (CoreSite Realty Corp)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, with respect to any period in which the Special Limited Partner has elected to be treated as a REIT for Federal income tax purposes, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 4 contracts

Samples: Agreement of Limited Partnership (CyrusOne Inc.), Agreement of Limited Partnership (CyrusOne Inc.), Agreement of Limited Partnership (CyrusOne Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to ~~any REIT~~ the Parent, the General Partner or ~~its~~ the Parent Limited Partner or their trustees, officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the ~~REIT Partner~~ Parent for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to ~~such REIT~~ the Parent, the General Partner or the Parent Limited Partner, shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) ~~four and nine-tenths percent (~~4.9%) % of the ~~REIT Partner’s~~ Parent's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the ~~REIT Partner~~ Parent from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) ~~twenty-four percent (~~24%) % of the ~~REIT Partner’s~~ Parent's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the ~~REIT Partner~~ Parent from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the ~~REIT Partner’s~~ Parent's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableYear. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent ~~any REIT Partner~~ the Parent from failing to qualify as a REIT under the Code by reason of ~~such REIT Partner’s~~ the Parent's share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 3 contracts

Samples: Agreement of Limited Partnership (Feldman Mall Properties, Inc.), Limited Partnership Agreement (Feldman Mall Properties, Inc.), Limited Partnership Agreement (Vintage Wine Trust Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableYear. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 3 contracts

Samples: Limited Partnership Agreement (Affordable Residential Communities Inc), Agreement of Limited Partnership (Hilltop Holdings Inc.), Agreement of Limited Partnership (Arbor Realty Trust Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) four ~~and nine-tenths~~ percent (~~4.9~~4%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); or (iib) an amount equal to the excess, if any, of (ai) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 3 contracts

Samples: Limited Partnership Agreement (Lineage, Inc.), Limited Partnership Agreement (Lineage, Inc.), Limited Partnership Agreement (Orion Office REIT Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to ~~any REIT~~ the Initial Limited Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the ~~REIT~~ Initial Limited Partner for purposes of ~~Code~~ Section 856(c)(2) or ~~Code Section~~ 856(c)(3)) of the Code, then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to ~~such REIT~~ the Initial Limited Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the ~~REIT~~ Initial Limited Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) of the Code) derived by the ~~REIT~~ Initial Limited Partner from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(2) of the Code (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the ~~REIT~~ Initial Limited Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(3)) of the Code) derived by the ~~REIT~~ Initial Limited Partner from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.;

Appears in 3 contracts

Samples: Limited Partnership Agreement (Phillips Edison Grocery Center Reit I, Inc.), Contribution Agreement (Phillips Edison Grocery Center Reit I, Inc.), Contribution Agreement (Phillips Edison Grocery Center Reit I, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would ~~constitute gross income to~~ otherwise cause the REIT Partner ~~for purposes~~ to fail to satisfy the requirements of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel or a ruling from the IRS that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableYear. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 3 contracts

Samples: Limited Partnership Agreement (NorthStar Realty Europe Corp.), Agreement of Limited Partnership (NorthStar Realty Europe Corp.), Limited Partnership Agreement (Northstar Realty Finance Corp.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to ~~any~~ Parent REIT ~~Partner~~ or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to ~~the~~ Parent REIT ~~Partner~~ for purposes of ~~Code~~ Section 856(c)(2) or ~~Code~~ Section 856(c)(3)) of the Code, then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by ~~the General Partner~~ Parent REIT in its sole and absolute discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership ~~Year~~ taxable year so that the REIT Payments, as so reduced, for or with respect to ~~such~~ Parent REIT ~~Partner~~ shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) ~~four and nine-tenths percent (~~4.9%) % of ~~the REIT Partner~~Parent REIT’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership ~~Year~~ taxable year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(2) of the Code over (bii) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) of the Code) derived by ~~the~~ Parent REIT ~~Partner~~ from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(2) of the Code (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); or (iib) an amount equal to the excess, if any, of (ai) ~~twenty-four percent (~~24%) % of ~~the REIT Partner~~Parent REIT’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership ~~Year~~ taxable year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code over (bii) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(3)) of the Code) derived by ~~the~~ Parent REIT ~~Partner~~ from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (ia) and (iib) above may be made if ~~the General Partner~~Parent REIT, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect ~~the REIT Partner~~Parent REIT’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership ~~Year~~ taxable year as a consequence of the limitations set forth in this Section ~~15.12~~12.10, such REIT Payments shall carry over and shall be treated as arising in the following Partnership ~~Year~~ taxable year if such carry over does not adversely affect ~~the REIT Partner~~Parent REIT’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership ~~Years~~taxable years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section ~~15.12~~ 12.10 is to prevent ~~any~~ Parent REIT ~~Partner~~ from failing to qualify as a REIT under the Code by reason of ~~such REIT Partner~~Parent REIT’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 12.10 shall be interpreted and applied to effectuate such purpose.

Appears in 3 contracts

Samples: Limited Partnership Agreement (Alpine Income Property Trust, Inc.), Limited Partnership Agreement (Alpine Income Property Trust, Inc.), Limited Partnership Agreement (Global Medical REIT Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, with respect to any period in which CLNS Credit has elected to be treated as a REIT for federal income tax purposes, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the ~~Partnership~~ Company to any REIT ~~Partner~~ Member or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT ~~Partner~~ Member (as determined for purposes of Code Section 856(c)(2) or Code Section 856(c)(3)), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the ~~General Partner~~ Managing Member in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT ~~Partner~~ Member shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT ~~Partner~~Member’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT ~~Partner~~Member’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the ~~General Partner~~Managing Member, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT ~~Partner~~Member’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following ~~Partnership~~ Fiscal Year if such carry over does not adversely affect the REIT ~~Partner~~Member’s ability to qualify as a REIT, ; provided, however, that ~~any~~ such ~~REIT Payment~~ amounts shall not ~~be carried~~ carry over for more than ~~three Partnership~~ five Fiscal Years, and ~~any~~ if not paid within such ~~remaining~~ five Fiscal Year period, shall expire; and provided further that (i) as REIT Payments are made, such payments shall ~~no longer~~ be ~~due~~ applied first to carry over amounts outstanding, if any, and ~~payable~~(ii) with respect to carry over amounts for more than one Fiscal Year, such payments shall be applied to the earliest Fiscal Year first. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT ~~Partner~~ Member from failing to qualify as a REIT under the Code by reason of such REIT ~~Partner~~Member’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the ~~Partnership~~Company, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 3 contracts

Samples: Limited Liability Company Agreement (Colony NorthStar Credit Real Estate, Inc.), Master Combination Agreement (NorthStar Real Estate Income II, Inc.), Master Combination Agreement (Colony NorthStar, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to or any Partners to, for or with respect any Partner that is a REIT ~~Partner~~ ("REIT Partner") or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the REIT Partner for purposes of ~~Code~~ Section ~~856(c)(2~~856 (c)(2) or ~~Code~~ Section 856(c)(3)) of the Code, then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, to, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (ax) four and nine-tenths percent (4.9%) of the REIT ~~Partner’s~~ Partner total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of ~~Code~~ Section 856(c)(2) over (by) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of ~~Code~~ Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (ax) ~~twenty-four percent (~~24%) % of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) over (by) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.;

Appears in 3 contracts

Samples: Limited Partnership Agreement (Mission West Properties Inc), Limited Partnership Agreement (Mission West Properties Inc), Limited Partnership Agreement (Mission West Properties Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be ~~paid, credited, distributed~~ paid or ~~reimbursed~~ credited by the Partnership to any REIT Partner or its officers, directors, employees or ~~agents, whether~~ agents as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential ~~distribution, reimbursement~~reimbursements, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s ~~share of items, including distributions,~~ reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 3 contracts

Samples: Limited Partnership Agreement (Silver Bay Realty Trust Corp.), Limited Partnership Agreement (Silver Bay Realty Trust Corp.), Limited Partnership Agreement (Silver Bay Realty Trust Corp.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to ~~any REIT~~ the General Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the ~~REIT~~ General Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), ~~then, notwithstanding any other provision of this Agreement,~~ then the amount of such REIT Payments, as selected by the General Partner in its sole discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to ~~such REIT Partner~~ the General Partner, shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) ~~four and nine-tenths percent (~~4.9%) % of the ~~REIT~~ General Partner’s total gross income (~~but excluding~~ including the amount of any REIT Payments ~~and amounts excluded from gross income pursuant to~~ after application of this Section ~~856(c)(5)(G) of the Code~~15.11) for the Partnership Year ~~that is described in subsections (A) through (I) of Code Section 856(c)(2)~~ over (bii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the ~~REIT~~ General Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (~~but not~~ including the amount of any REIT Payments ~~and amounts excluded from gross income pursuant to~~ after application of this Section ~~856(c)(5)(G) of the Code~~15.11); or (iib) an amount equal to the excess, if any, of (ai) ~~twenty-four percent (~~24%) % of ~~the REIT~~ General Partner’s total gross income (~~but excluding~~ including the amount of any REIT Payments ~~and amounts excluded from gross income pursuant to~~ after application of this Section ~~856(c)(5)(G) of the Code~~15.11) for the Partnership Year ~~that is described in subsections (A) through (I) of Code Section 856(c)(3)~~ over (bii) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the ~~REIT~~ General Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (~~but not~~ including the amount of any REIT Payments ~~and amounts excluded from gross income pursuant to~~ after application of this Section ~~856(c)(5)(G) of the Code~~15.11); provided, however, that REIT Payments in excess of the amounts set forth in ~~clauses~~ paragraphs (ia) and (iib) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the ~~REIT~~ General Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableYear. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent ~~any REIT~~ the General Partner from failing to qualify as a REIT under the Code by reason of ~~such REIT~~ the General Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Aviv Reit, Inc.), Limited Partnership Agreement (Aviv Reit, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to or any Partners to, for or with respect any Partner that is a REIT ~~Partner~~ (“REIT Partner”) or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of ~~Code~~ Section ~~856(c)(2~~856 (c)(2) or ~~Code~~ Section 856(c)(3)) of the Code, then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, to, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (ax) four and nine-tenths percent (4.9%) of the REIT ~~Partner’s~~ Partner total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of ~~Code~~ Section 856(c)(2) over (by) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of ~~Code~~ Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (ax) ~~twenty-four percent (~~24%) % of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) over (by) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.;

Appears in 2 contracts

Samples: Partnership Agreement (Mission West Properties Inc), Limited Partnership Agreement (Mission West Properties Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, with respect to any period in which VICI REIT has elected to be treated as a REIT for federal income tax purposes, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3) that is not described in subsections (A) through (I) of Code Section 856(c)(2) or subsections (A) through (I) of Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four ~~and nine-tenths~~ percent (~~4.9~~4%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year ~~that is described in subsections (A) through (I) of Code Section 856(c)(2)~~ over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year ~~that is described in subsections (A) through (I) of Code Section 856(c)(3)~~ over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT ~~under the Code~~ by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 2 contracts

Samples: Agreement of Limited Partnership (Vici Properties Inc.), Limited Partnership Agreement (Vici Properties Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to ~~any REIT~~ the Initial Limited Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the ~~REIT~~ Initial Limited Partner for purposes of ~~Code~~ Section 856(c)(2) or ~~Code Section~~ 856(c)(3)) of the Code, then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to ~~such REIT~~ the Initial Limited Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the ~~REIT~~ Initial Limited Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) of the Code) derived by the ~~REIT~~ Initial Limited Partner from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(2) of the Code (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the ~~REIT~~ Initial Limited Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(3)) of the Code) derived by the ~~REIT~~ Initial Limited Partner from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the ~~REIT~~ Initial Limited Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~15.14, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the ~~REIT~~ Initial Limited Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section ~~15.12~~ 15.14 is to prevent ~~any REIT~~ the Initial Limited Partner from failing to qualify as a REIT under the Code by reason of ~~such REIT~~ the Initial Limited Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.14 shall be interpreted and applied to effectuate such purpose.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Phillips Edison & Company, Inc.), Limited Partnership Agreement

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.;

Appears in 2 contracts

Samples: Limited Partnership Agreement (Aimco Properties Lp), Limited Partnership Agreement (Aimco Properties Lp)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its sole and absolute discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Code Section 856(c)(5)(G~~) of the Code~~)) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Code Section 856(c)(5)(G~~) of the Code~~)); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Code Section 856(c)(5)(G~~) of the Code~~)) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Code Section 856(c)(5)(G~~) of the Code~~)); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Invitation Homes Inc.), Limited Partnership Agreement (Invitation Homes Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the ~~Partnership~~ Company to, for or with respect to any REIT ~~Partner~~ Member or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the REIT ~~Partner~~ Member for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, at the option of the Managing Member, the amount of such REIT Payments, as selected by the ~~General Partner~~ Managing Member in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, to, for or with respect to such REIT ~~Partner~~ Member shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) four and nine-tenths percent (4.9%) of the REIT ~~Partner’s~~ Member's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (iib) an amount equal to the excess, if any, of (ai) ~~twenty-four percent (~~24%) % of the REIT ~~Partner’s~~ Member's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (ia) and (iib) above may be made if the ~~General Partner~~Managing Member, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT ~~Partner’s~~ Member's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableFiscal Year. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT ~~Partner~~ Member from failing to qualify as a REIT under the Code by reason of such REIT ~~Partner’s~~ Member's share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the ~~Partnership~~Company, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Inland Real Estate Corp), Limited Liability Company Agreement (Inland Real Estate Corp)

Limitation to Preserve REIT Status. ~~Notwithstanding anything else in this Agreement, to~~ To the extent that any amount paid or credited to the ~~amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT~~ General Partner or its officers, directors, employees or ~~agents, whether as a reimbursement, fee, expense~~ agents pursuant to Section 7.4 or ~~indemnity (a “REIT Payment”),~~ Section 7.7 hereof would constitute gross income to the ~~REIT~~ General Partner Entity for purposes of ~~Code~~ Section 856(c)(2) or 856(c)(3) of the Code ~~Section 856(c)(3),~~ (a "General Partner Payment") then, notwithstanding any other provision of this Agreement, the amount of such ~~REIT Payments, as selected by the~~ General Partner ~~in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced~~ Payments for any ~~Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner~~ fiscal year shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) ~~four and nine-tenths percent (4.9%)~~ 4.20% of the ~~REIT Partner’s~~ General Partner Entity's total gross income (but ~~excluding~~ not including the amount of any ~~REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~General Partner Payments) for the ~~Partnership Year that~~ fiscal year which is described in subsections (A) ~~through~~ though (IH) of ~~Code~~ Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) of the Code) derived by the ~~REIT~~ General Partner Entity from sources other than those described in subsections (A) through (H) of Section 856(c)(2) of the Code (but not including the amount of any General Partner Payments); or (ii) an amount equal to the excess, if any of (a) 25% of the General Partner Entity's total gross income (but not including the amount of any General Partner Payments) for the fiscal year which is described in subsections (A) through (I) of Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(3) of the Code) derived by the General Partner Entity from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code ~~Section 856(c)(2)~~ (but not including the amount of any ~~REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~General Partner Payments); ~~or (ii) an amount equal to the excess~~PROVIDED, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); provided, howeverHOWEVER, that ~~REIT~~ General Partner Payments in excess of the amounts set forth in ~~clauses~~ subparagraphs (i) and (ii) above may be made if the General ~~Partner~~Partner Entity, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ would not adversely affect the ~~REIT Partner’s~~ General Partner Entity's ability to qualify as a REIT. To the extent ~~that REIT~~ General Partner Payments may not be made in a ~~Partnership Year as a consequence of~~ year due to the ~~limitations set forth in this Section 15.12~~foregoing limitations, such ~~REIT~~ General Partner Payments shall carry over and ~~shall~~ be treated as arising in the following year, PROVIDED, HOWEVER, that such amounts shall not carry over for more than five years, and if not paid within such five year period, shall expire; PROVIDED, FURTHER, that (i) as General Partner Payments are made, such payments shall be applied first to carryover amounts outstanding, if any, and (ii) with respect to carryover amounts for more than one Partnership Year, such payments shall be applied to the earliest Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purposefirst.

Appears in 2 contracts

Samples: Agreement of Limited Partnership (Sl Green Realty Corp), Agreement of Limited Partnership (Sl Green Realty Corp)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the ~~Partnership~~ Company to, for or with respect to any REIT ~~Partner~~ Member or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the REIT ~~Partner~~ Member for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the ~~General Partner~~ Managing Member in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, to, for or with respect to such REIT ~~Partner~~ Member shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) four and ~~nine-~~nine- tenths percent (4.9%) of the REIT ~~Partner’s~~ Member's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (iib) an amount equal to the excess, if any, of (ai) ~~twenty-four percent (~~24%) % of the REIT ~~Partner’s~~ Member's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (ia) and (iib) above may be made if the ~~General Partner~~Managing Member, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT ~~Partner’s~~ Member's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableFiscal Year. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT ~~Partner~~ Member from failing to qualify as a REIT under the Code by reason of such REIT ~~Partner’s~~ Member's share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the ~~Partnership~~Company, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Bre Properties Inc /Md/), Limited Liability Company Agreement (Bre Properties Inc /Md/)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, with respect to any period in which the Special Limited Partner has elected to be treated as a REIT for Federal income tax purposes, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT~~, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable~~. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Avenue N Holdings LLC), Agreement of Limited Partnership (CareTrust REIT, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, with respect to any period in which the Initial Limited Partner has elected to be treated as a REIT for federal income tax purposes, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to ~~any REIT~~ the Initial Limited Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the ~~REIT~~ Initial Limited Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3) that is not described in subsections (A) through (I) of Code Section 856(c)(2) or subsections (A) through (I) of Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to ~~such REIT~~ the Initial Limited Partner shall not exceed the lesser of~~: (i)~~ : an amount equal to the excess, if any, of (ai) four ~~and nine-tenths~~ percent (~~4.9~~4%) of the ~~REIT~~ Initial Limited Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year ~~that is described in subsections (A) through (I) of Code Section 856(c)(2)~~ over (bii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the ~~REIT~~ Initial Limited Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); or (iia) an amount equal to the excess, if any, of (ai) twenty-four percent (24%) of the ~~REIT~~ Initial Limited Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year ~~that is described in subsections (A) through (I) of Code Section 856(c)(3)~~ over (bii) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the ~~REIT~~ Initial Limited Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); provided, however, that the REIT Payments in excess of the amounts set forth in clauses (ia) and (iib) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the ~~REIT~~ Initial Limited Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~14.10, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the ~~REIT~~ Initial Limited Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section ~~15.12~~ 14.10 is to prevent ~~any REIT~~ the Initial Limited Partner from failing to qualify as a REIT under the Code by reason of ~~such REIT~~ the Initial Limited Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 14.10 shall be interpreted and applied to effectuate such purpose.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Jones Lang LaSalle Income Property Trust, Inc.), Limited Partnership Agreement (Jones Lang LaSalle Income Property Trust, Inc.)

Limitation to Preserve REIT Status. ~~Notwithstanding anything else in this Agreement, to~~ To the extent that any amount paid or credited to the ~~amount to be paid, credited, distributed~~ Managing Member or ~~reimbursed by the Partnership to~~ any ~~REIT Partner or~~ of its officers, directors, employees or ~~agents, whether as a reimbursement, fee, expense~~ agents pursuant to Section 7.4 or ~~indemnity (a “REIT Payment”),~~ Section 7.7 would constitute gross income to the ~~REIT Partner~~ Managing Member for purposes of ~~Code~~ Section 856(c)(2) or 856(c)(3) of the Code ~~Section 856(c)(3),~~ (a “Managing Member Payment”) then, notwithstanding any other provision of this Agreement, the amount of such ~~REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced~~ Managing Member Payment for any ~~Partnership~~ Fiscal Year ~~so that the REIT Payments, as so reduced, for or with respect to such REIT Partner~~ shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) ~~four and nine-tenths percent (4.9%)~~ 4% of the ~~REIT Partner~~Managing Member’s total gross income (within the meaning of Section 856(c)(3) of the Code but ~~excluding~~ not including the amount of any ~~REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Managing Member Payments) for the ~~Partnership Year that~~ fiscal year which is described in subsections (A) ~~through~~ though (IH) of ~~Code~~ Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) of the Code) derived by the ~~REIT Partner~~ Managing Member from sources other than those described in subsections (A) through (H) of Section 856(c)(2) of the Code (but not including the amount of any Managing Member Payments); or (ii) an amount equal to the excess, if any of (a) 24% of the Managing Member’s total gross income (but not including the amount of any Managing Member Payments) for the Fiscal Year which is described in subsections (A) through (I) of Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(3) of the Code but not including the amount of any Managing Member Payments) derived by the Managing Member from sources other than those described in subsections (A) through (I) of ~~Code~~ Section ~~856(c)(2) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G~~856(c)(3) of the Code); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); provided, however, that ~~REIT~~ Managing Member Payments in excess of the amounts set forth in ~~clauses~~ subparagraphs (i) and (ii) above may be made if the ~~General Partner~~Managing Member, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ would not adversely affect the ~~REIT Partner~~Managing Member’s ability to qualify as a REIT. To the extent ~~that REIT~~ Managing Member Payments may not be made in a ~~Partnership Year as a consequence of~~ year due to the ~~limitations set forth in this Section 15.12~~foregoing limitations, such ~~REIT~~ Managing Member Payments shall carry over and ~~shall~~ be treated as arising in the following ~~Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT~~year, provided, however, that ~~any~~ such ~~REIT Payment~~ amounts shall not ~~be carried~~ carry over for more than ~~three Partnership Years~~five years, and ~~any~~ if not paid within such ~~remaining~~ five year period, shall expire; provided further, that (i) as Managing Member Payments are made, such payments shall ~~no longer~~ be ~~due and payable. The purpose of the limitations contained in this Section 15.12 is~~ applied first to ~~prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items~~carry over amounts outstanding, ~~including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership~~if any, and ~~this Section 15.12~~ (ii) with respect to carry over amounts for more than one Fiscal Year, such payments shall be ~~interpreted and~~ applied to ~~effectuate such purpose~~the earliest Fiscal Year first.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Trizec Properties Inc), Contribution Agreement (Trizec Properties Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the Managing General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the Managing General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s 's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s 's ability to qualify as a REIT~~, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable~~. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s 's share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Hartman Short Term Income Properties XX, Inc.), Limited Partnership Agreement (Douglas Emmett Inc)

Limitation to Preserve REIT Status. ~~Notwithstanding anything else in this Agreement~~If the Managing Member Entity attempts to qualify as a REIT, to the extent that any amount paid or credited to the ~~amount to be paid, credited, distributed~~ Managing Member Entity or ~~reimbursed by the Partnership to~~ any ~~REIT Partner or~~ of its officers, ~~directors~~trustees, employees or ~~agents, whether as a reimbursement, fee, expense~~ agents pursuant to Section 7.4 or ~~indemnity (a “REIT Payment”),~~ Section 7.7 would constitute gross income to the ~~REIT Partner~~ Managing Member for purposes of ~~Code~~ Section 856(c)(2) or 856(c)(3) of the Code ~~Section 856(c)(3),~~ (a “Managing Member Payment”) then, notwithstanding any other provision of this Agreement, the amount of such ~~REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced~~ Managing Member Payment for any ~~Partnership~~ Fiscal Year ~~so that the REIT Payments, as so reduced, for or with respect to such REIT Partner~~ shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) ~~four and nine-tenths percent (4.9%)~~ 4% of the ~~REIT Partner~~Managing Member Entity’s total gross income (within the meaning of Section 856(c)(3) of the Code but ~~excluding~~ not including the amount of any ~~REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Managing Member Payments) for the ~~Partnership~~ Fiscal Year ~~that~~ which is described in subsections (A) ~~through~~ though (I) of ~~Code~~ Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) of the Code) derived by the ~~REIT Partner~~ Managing Member Entity from sources other than those described in subsections (A) through (H) of Section 856(c)(2) of the Code (but not including the amount of any Managing Member Payments); or (ii) an amount equal to the excess, if any of (a) 24% of the Managing Member Entity’s total gross income (but not including the amount of any Managing Member Payments) for the Fiscal Year which is described in subsections (A) through (I) of Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(3) of the Code but not including the amount of any Managing Member Payments) derived by the Managing Member Entity from sources other than those described in subsections (A) through (I) of ~~Code~~ Section ~~856(c)(2) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G~~856(c)(3) of the Code); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); provided, however, that ~~REIT~~ Managing Member Payments in excess of the amounts set forth in ~~clauses~~ subparagraphs (i) and (ii) above may be made if the ~~General Partner~~Managing Member Entity, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ would not adversely affect the ~~REIT Partner~~Managing Member Entity’s ability to qualify as a REIT. To the extent ~~that REIT~~ Managing Member Payments may not be made in a ~~Partnership~~ given Fiscal Year ~~as a consequence of~~ due to the ~~limitations set forth in this Section 15.12~~foregoing limitations, such ~~REIT~~ Managing Member Payments shall carry over and ~~shall~~ be treated as arising in the following ~~Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT,~~ year; provided, however, that ~~any~~ such ~~REIT Payment~~ amounts shall not ~~be carried~~ carry over for more than ~~three Partnership~~ five Fiscal Years, and ~~any~~ if not paid within such ~~remaining~~ five Fiscal Year period, shall expire; and provided further that (i) as Managing Member Payments are made, such payments shall ~~no longer~~ be ~~due and payable. The purpose of the limitations contained in this Section 15.12 is~~ applied first to ~~prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items~~carry over amounts outstanding, ~~including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership~~if any, and ~~this Section 15.12~~ (ii) with respect to carry over amounts for more than one Fiscal Year, such payments shall be ~~interpreted and~~ applied to ~~effectuate such purpose~~the earliest Fiscal Year first.

Appears in 2 contracts

Samples: Operating Agreement (Broadstone Net Lease, Inc.), Operating Agreement (Broadstone Net Lease, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to ~~any REIT Partner~~ the General Partner, or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the ~~REIT~~ General Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), ~~then, notwithstanding any other provision of this Agreement,~~ then the amount of such REIT Payments, as selected by the General Partner in its sole and absolute discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to ~~such REIT Partner~~ Omega REIT, shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) ~~four and nine-tenths percent (~~4.9%) % of the ~~REIT Partner’s~~ total of Omega REIT’s, if any, total gross income (~~but excluding~~ including the amount of any REIT Payments ~~and amounts excluded from gross income pursuant to~~ after application of this Section ~~856(c)(5)(G) of the Code~~16.11) for the Partnership Year ~~that is described in subsections (A) through (I) of Code Section 856(c)(2)~~ over (bii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by ~~the~~ Omega REIT ~~Partner~~ from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (~~but not~~ including the amount of any REIT Payments ~~and amounts excluded from gross income pursuant to~~ after application of this Section ~~856(c)(5)(G) of the Code~~16.11); or (iib) an amount equal to the excess, if any, of (ai) ~~twenty-four percent (~~24%) % of the ~~REIT Partner~~total of Omega REIT’s total gross income (~~but excluding~~ including the amount of any REIT Payments ~~and amounts excluded from gross income pursuant to~~ after application of this Section ~~856(c)(5)(G) of the Code~~16.11) for the Partnership Year ~~that is described in subsections (A) through (I) of Code Section 856(c)(3)~~ over (bii) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by ~~the~~ Omega REIT ~~Partner~~ from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (~~but not~~ including the amount of any REIT Payments ~~and amounts excluded from gross income pursuant to~~ after application of this Section ~~856(c)(5)(G) of the Code~~16.11); provided, however, that REIT Payments in excess of the amounts set forth in ~~clauses~~ paragraphs (ia) and (iib) above may be made if ~~the General Partner~~Omega REIT, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect ~~the REIT Partner~~Omega REIT’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~16.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableYear. The purpose of the limitations contained in this Section ~~15.12~~ 16.11 is to prevent ~~any~~ Omega REIT ~~Partner~~ from failing to qualify as a REIT under the Code by reason of ~~such REIT Partner~~Omega REIT’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 16.11 shall be interpreted and applied to effectuate such purpose.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Hot Springs Cottages Owner, LLC), Limited Partnership Agreement (Omega Healthcare Investors Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this ~~Agreement~~Agreement and if MIC qualifies as a REIT or intends to qualify as a REIT, to the extent that the amount to be paid, credited, distributed or reimbursed by the ~~Partnership~~ Company to any REIT ~~Partner~~ Member or its officers, ~~directors~~trustees, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT ~~Partner~~ Member for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the ~~General Partner~~ Board in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT ~~Partner~~ Member shall not exceed the lesser of: ~~(i)~~ A. an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT ~~Partner~~Member’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Code Section ~~856(c)(5)(G) of the Code~~856(c)) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments and any amounts excluded from gross income pursuant to Code Section ~~856(c)(5)(G) of the Code~~856(c)); or ~~(ii)~~ B. an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT ~~Partner~~Member’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Code Section ~~856(c)(5)(G) of the Code~~856(c)) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and any amounts excluded from gross income pursuant to Code Section ~~856(c)(5)(G) of the Code~~856(c)); provided, however, that REIT Payments in excess of the amounts set forth in clauses (ia) and (iib) above may be made if ~~the General Partner~~MIC, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT ~~Partner~~Member’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following ~~Partnership~~ Fiscal Year if such carry over does not adversely affect the REIT ~~Partner~~Member’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three ~~Partnership~~ Fiscal Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT ~~Partner~~ Member from failing to qualify as a REIT under the Code by reason of such REIT ~~Partner~~Member’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the ~~Partnership~~Company, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Mobile Infrastructure Corp), Agreement and Plan of Merger (Mobile Infrastructure Corp)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, trustees, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its sole and absolute discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of of: (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); or (ii) an amount equal to the excess, if any, of of: (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following ~~Partnership~~ Fiscal Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three ~~Partnership~~ Fiscal Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Federal Realty OP LP), Limited Partnership Agreement (Federal Realty OP LP)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the REIT Partner for purposes of ~~Code~~ Section 856(c)(2) or ~~Code Section~~ 856(c)(3)) of the Code, then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General ~~Partner~~ Partners in ~~its~~ their discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any fiscal year of the Partnership ~~Year~~ so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) four and nine-tenths percent (4.9%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the fiscal year of the Partnership ~~Year~~ that is described in ~~subsections (A) through (I) of Code~~ Section 856(c)(2) of the Code (or any substitute or successor provision thereto) over (bii) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2) of the Code (or any substitute or successor provision thereto)) derived by the REIT Partner from sources other than those described in ~~subsections (A) through (I~~Section 856(c)(2) of the Code ~~Section 856(c)(2~~(or any substitute or successor provision thereto) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (iib) an amount equal to the excess, if any, of (ai) twenty-four percent (24%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the fiscal year of the Partnership ~~Year~~ that is described in ~~subsections (A) through (I) of Code~~ Section 856(c)(3) of the Code (or any substitute or successor provision thereto) over (bii) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(3) of the Code (or any substitute or successor provision thereto)) derived by the REIT Partner from sources other than those described in ~~subsections (A) through (I~~Section 856(c)(3) of the Code ~~Section 856(c)(3~~(or any substitute or successor provision thereto) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (ia) and (iib) above may be made if the General ~~Partner~~Partners, as a condition precedent, ~~obtains~~ obtain an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s 's ability to qualify as a ~~REIT~~real estate investment trust under the Code. To the extent that REIT Payments may not be made in a fiscal year of the Partnership ~~Year~~ as a consequence of the limitations set forth in this Section ~~15.12~~16.9, such REIT Payments shall carry over and shall be treated as arising in the following ~~Partnership Year if such carry over does not adversely affect~~ fiscal year of the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payablePartnership. The purpose of the limitations contained in this Section ~~15.12~~ 16.9 is to prevent any REIT Partner from failing to qualify as a ~~REIT~~ real estate investment trust under the Code by reason of such REIT Partner’s 's share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 16.9 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (U S Restaurant Properties Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.;

Appears in 1 contract

Samples: Limited Partnership Agreement (Newkirk Realty Trust, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the Managing General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the Managing General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s 's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableYear. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s 's share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Global Signal Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four ~~and nine-tenths~~ percent (~~4.9~~4%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) ~~through~~ through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Rexford Industrial Realty, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT ~~Partner~~ Party or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the Parent REIT ~~Partner~~ for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT ~~Partner~~ Party shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT ~~Partner’s~~ Party's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT ~~Partner~~ Party from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT ~~Partner’s~~ Party's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT ~~Partner~~ Party from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the ~~REIT Partner’s~~ Parent REIT's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableYear. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent ~~any~~ the Parent REIT ~~Partner~~ from failing to qualify as a REIT under the Code by reason of ~~such~~ any REIT ~~Partner’s~~ Party's share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Arbor Realty Trust Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: ~~(i)~~ A. an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); or ~~(ii)~~ B. an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose. Notwithstanding the foregoing, this Section 15.12 shall not apply for the taxable year ending December 31, 2024, and for any subsequent taxable year unless and until the REIT Limited Partner elects to attempt to qualify as a REIT.

Appears in 1 contract

Samples: Limited Partnership Agreement (Creative Media & Community Trust Corp)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would ~~constitute gross income to~~ otherwise cause the REIT Partner ~~for purposes~~ to fail to satisfy the requirements of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel or a ruling from the IRS that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s 's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableYear. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s 's share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Northstar Realty)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent ~~that the~~ any amount ~~to be~~ paid, ~~credited, distributed~~ credited or reimbursed by to the ~~Partnership to any REIT Partner~~ Managing Member or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the ~~REIT Partner~~ Managing Member for purposes of ~~Code Section~~ Sections 856(c)(2) or ~~Code Section~~ 856(c)(3)) of the Code, then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the ~~General Partner~~ Managing Member in its discretion from among items of potential ~~distribution,~~ reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, to, for or with respect to such REIT ~~Partner~~ Member shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and ~~nine~~seventeen one-~~tenths~~ hundredths percent (~~4.9~~4.17%) of the ~~REIT Partner’s~~ Managing Member's total gross income (but ~~excluding~~ not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of ~~Code~~ Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) of the Code) derived by the ~~REIT Partner~~ Managing Member from sources other than those described in subsections (A) through (IH) of ~~Code~~ Section 856(c)(2) of the Code (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-~~four~~ five percent (2425%) of the ~~REIT Partner’s~~ Managing Member's total gross income (but ~~excluding~~ not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(3)) of the Code derived by the ~~REIT Partner~~ Managing Member from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in ~~clauses~~ subparagraphs (i) and (ii) above may be made if the ~~General Partner~~Managing Member, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ would not adversely affect the ~~REIT Partner’s~~ Managing Member's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and ~~shall~~ be treated as arising in the following ~~Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT,~~ Fiscal Year; provided, however, that ~~any~~ such ~~REIT Payment~~ amount shall not ~~be carried~~ carry over for more than ~~three Partnership Years~~five (5) years, and ~~any~~ if not paid within such ~~remaining~~ five (5) year period, shall expire; provided, further, that (a) as REIT Payments are made, such payments shall ~~no longer~~ be ~~due and payable. The purpose of the limitations contained in this Section 15.12 is~~ applied first to ~~prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items~~carry over amounts outstanding, ~~including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership~~if any, and ~~this Section 15.12~~ (b) with respect to carry over amounts for more than one Fiscal Year, such payment shall be ~~interpreted and~~ applied to ~~effectuate such purpose~~the earliest Fiscal Year first.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Health Care Property Investors Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, with respect to any period in which CLNS has elected to be treated as a REIT for federal income tax purposes, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the ~~Partnership~~ Company to any REIT ~~Partner~~ Member or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT ~~Partner~~ Member (as determined for purposes of Code Section 856(c)(2) or Code Section 856(c)(3)), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the ~~General Partner~~ Managing Member in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT ~~Partner~~ Member shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT ~~Partner~~Member’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT ~~Partner~~Member’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the ~~General Partner~~Managing Member, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT ~~Partner~~Member’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following ~~Partnership~~ Fiscal Year if such carry over does not adversely affect the REIT ~~Partner~~Member’s ability to qualify as a ~~REIT,~~ REIT provided, however, that ~~any~~ such ~~REIT Payment~~ amounts shall not ~~be carried~~ carry over for more than ~~three Partnership~~ five Fiscal Years, and ~~any~~ if not paid within such ~~remaining~~ five Fiscal Year period, shall expire; and provided further that (i) as REIT Payments are made, such payments shall ~~no longer~~ be ~~due~~ applied first to carry over amounts outstanding, if any, and ~~payable~~(ii) with respect to carry over amounts for more than one Fiscal Year, such payments shall be applied to the earliest Fiscal Year first. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT ~~Partner~~ Member from failing to qualify as a REIT under the Code by reason of such REIT ~~Partner~~Member’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the ~~Partnership~~Company, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Colony NorthStar, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to, for or with respect to ~~any REIT~~ the General Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the ~~REIT~~ General Partner or its Parent for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, to, for or with respect to ~~such REIT~~ the General Partner shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) four and nine-tenths percent (4.9%) of the ~~REIT~~ General Partner’s 's Parent's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the ~~REIT Partner~~ General Partner's Parent from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (iib) an amount equal to the excess, if any, of (ai) ~~twenty-four percent (~~24%) % of the ~~REIT~~ General Partner’s 's Parent's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the ~~REIT Partner~~ General Partner's Parent from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (ia) and (iib) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the ~~REIT~~ General Partner’s 's Parent's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section ~~15.12~~14.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableFiscal Year. The purpose of the limitations contained in this Section ~~15.12~~ 14.12 is to prevent ~~any REIT Partner~~ General Partner's Parent from failing to qualify as a REIT under the Code by reason of ~~such REIT~~ the Parent's allocable share of the General Partner’s 's share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 14.12 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Kimco Realty Corp)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, with respect to any period in which LCC Corporation has elected to be treated as a REIT for federal income tax purposes, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership or any Series to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner of the Partnership or of such Series in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Taxable Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Taxable Year that is described in subsections (A) through (I) of Code Section ~~856(c)(2~~856(c) (2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (iib) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Taxable Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made by a Series or the Partnership if the General ~~Partner~~Partner of such Series or the Partnership, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Taxable Year as a consequence of the limitations set forth in this Section ~~15.12~~13.13, such REIT Payments shall carry over and shall be treated as arising in the following ~~Partnership~~ Taxable Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three ~~Partnership~~ Taxable Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section ~~15.12~~ 13.13 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 13.13 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Liability Limited Partnership Agreement (Ladder Capital Corp)

Limitation to Preserve REIT Status. ~~Notwithstanding anything else in this Agreement, to~~ To the extent that the amount ~~to be~~ paid, credited, ~~distributed~~ or reimbursed by the ~~Partnership~~ Company to, for or with respect to any REIT ~~Partner~~ Member or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the REIT ~~Partner~~ Member for purposes of ~~Code Section~~ Sections 856(c)(2) or ~~Code Section~~ 856(c)(3)) of the Code, then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the ~~General Partner~~ Managing Member in its discretion from among items of potential ~~distribution,~~ reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, to, for or with respect to such REIT ~~Partner~~ Member shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (ai) ~~four and nine-tenths percent (4.9%)~~ 4.17% of the REIT ~~Partner’s~~ Member's total gross income (but ~~excluding~~ not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of ~~Code~~ Section 856(c)(2) of the Code over (bii) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) of the Code) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (IH) of ~~Code~~ Section 856(c)(2) of the Code (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (ai) ~~twenty-four percent (24%)~~ 25% of the REIT ~~Partner’s~~ Member's total gross income (but ~~excluding~~ not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code over (bii) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(3)) of the Code derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in ~~clauses~~ subparagraphs (i) and (ii) above may be made if the ~~General Partner~~Managing Member, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ would not adversely affect the REIT ~~Partner’s~~ Member's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and ~~shall~~ be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableFiscal Year. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT ~~Partner~~ Member from failing to qualify as a REIT under the Code by reason of such REIT ~~Partner’s~~ Member's share of items, including ~~distributions,~~ reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the ~~Partnership~~Company, and this Section 15.12 shall be interpreted and applied to effectuate such purpose; provided, however, that such amount shall not carry over for more than five years, and if not paid within such five year period, shall expire; provided further, that (a) as REIT Payments are made, such payments shall be applied first to carry over amounts outstanding, if any, and (b) with respect to carry over amounts for more than one Fiscal Year, such payments shall be applied to the earliest Fiscal Year first.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Pan Pacific Retail Properties Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent ~~that the~~ any amount ~~to be~~ paid, ~~credited, distributed~~ credited or reimbursed by to the ~~Partnership to any REIT Partner~~ Managing Member or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the ~~REIT Partner~~ Managing Member for purposes of ~~Code Section~~ Sections 856(c)(2) or ~~Code Section~~ 856(c)(3)) of the Code, then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the ~~General Partner~~ Managing Member in its discretion from among items of potential ~~distribution,~~ reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, to, for or with respect to such REIT ~~Partner~~ Member shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and ~~nine~~seventeen one-~~tenths~~ hundredths percent (~~4.9~~4.17%) of the ~~REIT Partner~~Managing Member’s total gross income (but ~~excluding~~ not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of ~~Code~~ Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) of the Code) derived by the ~~REIT Partner~~ Managing Member from sources other than those described in subsections (A) through (IH) of ~~Code~~ Section 856(c)(2) of the Code (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-~~four~~ five percent (2425%) of the ~~REIT Partner~~Managing Member’s total gross income (but ~~excluding~~ not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(3)) of the Code derived by the ~~REIT Partner~~ Managing Member from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in ~~clauses~~ subparagraphs (i) and (ii) above may be made if the ~~General Partner~~Managing Member, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ would not adversely affect the ~~REIT Partner~~Managing Member’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and ~~shall~~ be treated as arising in the following ~~Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT,~~ Fiscal Year; provided, however, that ~~any~~ such ~~REIT Payment~~ amount shall not ~~be carried~~ carry over for more than ~~three Partnership Years~~five (5) years, and ~~any~~ if not paid within such ~~remaining~~ five (5) year period, shall expire; provided, further, that (a) as REIT Payments are made, such payments shall ~~no longer~~ be ~~due and payable. The purpose of the limitations contained in this Section 15.12 is~~ applied first to ~~prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items~~carry over amounts outstanding, ~~including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership~~if any, and ~~this Section 15.12~~ (b) with respect to carry over amounts for more than one Fiscal Year, such payment shall be ~~interpreted and~~ applied to ~~effectuate such purpose~~the earliest Fiscal Year first.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Hcp, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this ~~Agreement~~Agreement and if the General Partner qualifies as a REIT or intends to qualify as a REIT, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, ~~directors~~trustees, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: ~~(i)~~ A. an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Code Section ~~856(c)(5)(G) of the Code~~856(c)) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments and any amounts excluded from gross income pursuant to Code Section ~~856(c)(5)(G) of the Code~~856(c)); ~~or (ii)~~ or B. an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Code Section ~~856(c)(5)(G) of the Code~~856(c)) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and any amounts excluded from gross income pursuant to Code Section ~~856(c)(5)(G) of the Code~~856(c)); provided, however, that REIT Payments in excess of the amounts set forth in clauses (ia) and (iib) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Merger Agreement (Mobile Infrastructure Corp)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, with respect to any period in which IMC REIT has elected to be treated as a REIT for federal income tax purposes, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four ~~and nine-tenths~~ percent (~~4.9~~4%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (International Market Centers, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a NY\6167084.9 reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its sole and absolute discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Spirit Realty Capital, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to, for or with respect to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT ~~Payment”~~PAYMENT"), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, to, for or with respect to such REIT Partner shall not exceed the lesser of: ~~(i)~~ A. an amount equal to the excess, if any, of (a1) four and nine-tenths percent (4.9%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of Code Section ~~856(c)(2~~8.56(c)(2) over (b2) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or ~~(ii)~~ B. an amount equal to the excess, if any, of (a1) twenty-four percent (24%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I1) of Code Section 856(c)(3) over (b2) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (ia) and (iib) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s 's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section ~~15.12~~16.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableFiscal Year. The purpose of the limitations contained in this Section ~~15.12~~ 16.11 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s 's share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 16.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Pennsylvania Real Estate Investment Trust)

Limitation to Preserve REIT Status. A. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableFiscal Year. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Sabra Ohio, LLC)

Limitation to Preserve REIT Status. ~~Notwithstanding anything else in this Agreement, to~~ To the extent that the amount paid or credited to ~~be paid, credited, distributed or reimbursed by~~ the ~~Partnership to any REIT~~ General Partner or its officers, directors, employees or ~~agents, whether as a reimbursement, fee, expense~~ agents pursuant to Section 7.4 or ~~indemnity (a “REIT Payment”),~~ Section 7.7 would constitute gross income to the ~~REIT~~ Initial General Partner for purposes of ~~Code Section~~ Sections 856(c)(2) or 856(c)(3) of the Code ~~Section 856(c)(3),~~ (a “GP Payment”) then, notwithstanding any other provision of this Agreement, the amount of such ~~REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced~~ GP Payments for any Partnership Year ~~so that the REIT Payments, as so reduced, for or with respect to such REIT Partner~~ shall not exceed the lesser of:: NY\5888591.8 (i) an amount equal to the excess, if any, of (a) ~~four and nine-tenths percent (4.9%)~~ 4.17% of the ~~REIT~~ Initial General Partner’s total gross income (but ~~excluding~~ not including the amount of any ~~REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~GP Payments) for the Partnership Year ~~that~~ which is described in subsections (A) through (IH) of ~~Code~~ Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) of the Code) derived by the ~~REIT~~ Initial General Partner from sources other than those described in subsections (A) through (IH) of ~~Code~~ Section 856(c)(2) of the Code (but not including the amount of any ~~REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~GP Payments); or (ii) an amount equal to the excess, if any, of (a) ~~twenty-four percent (24%)~~ 25% of the ~~REIT~~ Initial General Partner’s total gross income (but ~~excluding~~ not including the amount of any ~~REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~GP Payments) for the Partnership Year ~~that~~ which is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(3)) of the Code) derived by the ~~REIT~~ Initial General Partner from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code (but not including the amount of any ~~REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~GP Payments); provided, however, that ~~REIT~~ GP Payments in excess of the amounts set forth in ~~clauses~~ subparagraphs (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ would not adversely affect the ~~REIT~~ Initial General Partner’s ability to qualify as a REIT. To the extent ~~that REIT~~ GP Payments may not be made in a ~~Partnership Year as a consequence of~~ year due to the ~~limitations set forth in this Section 15.12~~foregoing limitations, such ~~REIT~~ GP Payments shall carry over and ~~shall~~ be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableyear. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.[Signature pages follow] NY\5888591.8

Appears in 1 contract

Samples: Limited Partnership Agreement (Tanger Properties LTD Partnership /Nc/)

Limitation to Preserve REIT Status. ~~Notwithstanding~~ Notwithstand- ing anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.;

Appears in 1 contract

Samples: Limited Partnership Agreement (Apartment Investment & Management Co)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) ~~four and nine-tenths percent (4.9%)~~ 4% of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Code Section ~~856(c)(5)(G) of the Code~~856(c)) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Code Section ~~856(c)(5)(G) of the Code~~856(c)); or (iib) an amount equal to the excess, if any, of (ai) ~~twenty-four percent (~~24%) % of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Code Section ~~856(c)(5)(G) of the Code~~856(c)) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Code Section ~~856(c)(5)(G) of the Code~~856(c)); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Agreement of Limited Partnership (NewLake Capital Partners, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to, for or with respect to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT ~~Payment”~~PAYMENT"), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, to, for or with respect to such REIT Partner shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) four and nine-tenths percent (4.9%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (iib) an amount equal to the excess, if any, of (ai) twenty-four percent (24%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.from

Appears in 1 contract

Samples: Limited Partnership Agreement (Excel Realty Trust Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its sole and absolute discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.;

Appears in 1 contract

Samples: Limited Partnership Agreement (Brixmor Operating Partnership LP)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be ~~paid, credited, distributed~~ paid or ~~reimbursed~~ credited by the Partnership to any REIT Partner or its officers, directors, employees or ~~agents, whether~~ agents as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential ~~distribution, reimbursement~~reimbursements, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (aA) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (bB) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); or (ii) an amount equal to the excess, if any, of (aA) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (bB) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s ~~share of items, including distributions,~~ reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Guide Holdings Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent ~~that the~~ any amount ~~to be~~ paid, credited, distributed or reimbursed by to the ~~Partnership to any REIT Partner~~ Managing Member or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the ~~REIT Partner~~ Managing Member for purposes of ~~Code Section~~ Sections 856(c)(2) or ~~Code Section~~ 856(c)(3)) of the Code, then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the ~~General Partner~~ Managing Member in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, to, for or with respect to such REIT ~~Partner~~ Member shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and ~~nine~~seventeen one-~~tenths~~ hundredths percent (~~4.9~~4.17%) of the ~~REIT Partner’s~~ Managing Member's total gross income (but ~~excluding~~ not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of ~~Code~~ Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) of the Code) derived by the ~~REIT Partner~~ Managing Member from sources other than those described in subsections (A) through (IH) of ~~Code~~ Section 856(c)(2) of the Code (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-~~four~~ five percent (2425%) of the ~~REIT Partner’s~~ Managing Member's total gross income (but ~~excluding~~ not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(3)) of the Code derived by the ~~REIT Partner~~ Managing Member from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in ~~clauses~~ subparagraphs (i) and (ii) above may be made if the ~~General Partner~~Managing Member, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ would not adversely affect the ~~REIT Partner’s~~ Managing Member's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and ~~shall~~ be treated as arising in the following ~~Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT,~~ Fiscal Year; provided, however, that ~~any~~ such ~~REIT Payment~~ amount shall not ~~be carried~~ carry over for more than ~~three Partnership Years~~five (5) years, and ~~any~~ if not paid within such ~~remaining~~ five (5) year period, shall expire; provided, further, that (a) as REIT Payments are made, such payments shall ~~no longer~~ be ~~due and payable. The purpose of the limitations contained in this Section 15.12 is~~ applied first to ~~prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items~~carry over amounts outstanding, ~~including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership~~if any, and ~~this Section 15.12~~ (b) with respect to carry over amounts for more than one Fiscal Year, such payment shall be ~~interpreted and~~ applied to ~~effectuate such purpose~~the earliest Fiscal Year first.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Health Care Property Investors Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.;

Appears in 1 contract

Samples: Limited Partnership Agreement (Pacific Office Properties Trust, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to ~~any REIT~~ the General Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the ~~REIT~~ General Partner for purposes of ~~Code~~ Section 856(c)(2) or ~~Code~~ Section 856(c)(3)) of the Code, then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its sole and absolute discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership ~~Year~~ taxable year so that the REIT Payments, as so reduced, for or with respect to ~~such REIT~~ the General Partner shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (a) ~~four and nine-tenths percent (~~4.9%) % of the ~~REIT~~ General Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership ~~Year~~ taxable year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) of the Code) derived by the ~~REIT~~ General Partner from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(2) of the Code (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); or (iib) an amount equal to the excess, if any, of (a) ~~twenty-four percent (~~24%) % of the ~~REIT~~ General Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership ~~Year~~ taxable year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(3)) of the Code) derived by the ~~REIT~~ General Partner from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.;

Appears in 1 contract

Samples: Limited Partnership Agreement (RiverBanc Multifamily Investors, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to ~~any~~ Xenia REIT ~~Partner~~ or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to ~~the~~ Xenia REIT ~~Partner~~ for purposes of ~~Code~~ Section 856(c)(2) or ~~Code~~ Section 856(c)(3)) of the Code, then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its sole and absolute discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership ~~Year~~ taxable year so that the REIT Payments, as so reduced, for or with respect to ~~such~~ Xenia REIT ~~Partner~~ shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) ~~four and nine-tenths percent (~~4.9%) % of ~~the REIT Partner~~Xenia REIT’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership ~~Year~~ taxable year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) of the Code) derived by ~~the~~ Xenia REIT ~~Partner~~ from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(2) of the Code (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); or (ii) an amount equal to the excess, if any, of (a) ~~twenty-four percent (~~24%) % of ~~the REIT Partner~~Xenia REIT’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership ~~Year~~ taxable year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(3)) of the Code) derived by ~~the~~ Xenia REIT ~~Partner~~ from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect ~~the REIT Partner~~Xenia REIT’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership ~~Year~~ taxable CH\2141662.3 year as a consequence of the limitations set forth in this Section ~~15.12~~12.10, such REIT Payments shall carry over and shall be treated as arising in the following Partnership ~~Year~~ taxable year if such carry over does not adversely affect ~~the REIT Partner~~Xenia REIT’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership ~~Years~~taxable years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section ~~15.12~~ 12.10 is to prevent ~~any~~ Xenia REIT ~~Partner~~ from failing to qualify as a REIT under the Code by reason of ~~such REIT Partner~~Xenia REIT’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 12.10 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Xenia Hotels & Resorts, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, with respect to any period in which BrightSpire Capital has elected to be treated as a REIT for federal income tax purposes, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the ~~Partnership~~ Company to any REIT ~~Partner~~ Member or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT ~~Partner~~ Member (as determined for purposes of Code Section 856(c)(2) or Code Section 856(c)(3)), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the ~~General Partner~~ Managing Member in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT ~~Partner~~ Member shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT ~~Partner~~Member’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT ~~Partner~~Member’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the ~~General Partner~~Managing Member, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT ~~Partner~~Member’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following ~~Partnership~~ Fiscal Year if such carry over does not adversely affect the REIT ~~Partner~~Member’s ability to qualify as a REIT, ; provided, however, that ~~any~~ such ~~REIT Payment~~ amounts shall not ~~be carried~~ carry over for more than ~~three Partnership~~ five Fiscal Years, and ~~any~~ if not paid within such ~~remaining~~ five Fiscal Year period, shall expire; and provided further that (i) as REIT Payments are made, such payments shall ~~no longer~~ be ~~due~~ applied first to carry over amounts outstanding, if any, and ~~payable~~(ii) with respect to carry over amounts for more than one Fiscal Year, such payments shall be applied to the earliest Fiscal Year first. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT ~~Partner~~ Member from failing to qualify as a REIT under the Code by reason of such REIT ~~Partner~~Member’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the ~~Partnership~~Company, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Liability Company Agreement (BrightSpire Capital, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four ~~and nine-tenths~~ percent (~~4.9~~4%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.;

Appears in 1 contract

Samples: Limited Partnership Agreement (Rexford Industrial Realty, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to ~~any~~ Xenia REIT ~~Partner~~ or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to ~~the~~ Xenia REIT ~~Partner~~ for purposes of ~~Code~~ Section 856(c)(2) or ~~Code~~ Section 856(c)(3)) of the Code, then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its sole and absolute discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership ~~Year~~ taxable year so that the REIT Payments, as so reduced, for or with respect to ~~such~~ Xenia REIT ~~Partner~~ shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) ~~four and nine-tenths percent (~~4.9%) % of ~~the REIT Partner~~Xenia REIT’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership ~~Year~~ taxable year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) of the Code) derived by ~~the~~ Xenia REIT ~~Partner~~ from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(2) of the Code (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); or (ii) an amount equal to the excess, if any, of (a) ~~twenty-four percent (~~24%) % of ~~the REIT Partner~~Xenia REIT’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership ~~Year~~ taxable year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(3)) of the Code) derived by ~~the~~ Xenia REIT ~~Partner~~ from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect ~~the REIT Partner~~Xenia REIT’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership ~~Year~~ taxable year as a consequence of the limitations set forth in this Section ~~15.12~~12.10, such REIT Payments shall carry over and shall be treated as arising in the following Partnership ~~Year~~ taxable year if such carry over does not adversely affect ~~the REIT Partner~~Xenia REIT’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership ~~Years~~taxable years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section ~~15.12~~ 12.10 is to prevent ~~any~~ Xenia REIT ~~Partner~~ from failing to qualify as a REIT under the Code by reason of ~~such REIT Partner~~Xenia REIT’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 12.10 shall be interpreted and applied to effectuate such purpose.. [SIGNATURE PAGES FOLLOW]

Appears in 1 contract

Samples: Agreement of Limited Partnership (Xenia Hotels & Resorts, Inc.)

Limitation to Preserve REIT Status. ~~Notwithstanding anything else in this Agreement, to~~ To the extent that the amount ~~to be~~ paid, credited, ~~distributed~~ or reimbursed by the ~~Partnership~~ Company to, for or with respect to any REIT ~~Partner~~ Member or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the REIT ~~Partner~~ Member for purposes of ~~Code Section~~ Sections 856(c)(2) or ~~Code Section~~ 856(c)(3)) of the Code, then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by ~~the General Partner~~ PPRP in its discretion from among items of potential ~~distribution,~~ reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, to, for or with respect to such REIT ~~Partner~~ Member shall not exceed the lesser of: ~~(i)~~ A. an amount equal to the excess, if any, of (ai) ~~four and nine-tenths percent (4.9%)~~ 4.17% of the REIT ~~Partner’s~~ Member's total gross income (but ~~excluding~~ not including the amount of any REIT ~~Payments and amounts excluded from~~ Payments) for the Fiscal Year that is described in subsections (A) through (H) of Section 856(c)(2) of the Code over (ii) the amount of gross income ~~pursuant to~~ (within the meaning of Section ~~856(c)(5)(G~~856(c)(2) of the Code) derived by the REIT Member from sources other than those described in subsections (A) through (H) of Section 856(c)(2) of the Code (but not including the amount of any REIT Payments); or B. an amount equal to the excess, if any, of (i) 25% of the REIT Member's total gross income (but not including the amount of any REIT Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Section 856(c)(3) of the Code ~~Section 856(c)(2)~~ over (bii) the amount of gross income (within the meaning of ~~Code~~ Section ~~856(c)(2~~856(c)(3)) of the Code derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code ~~Section 856(c)(2)~~ (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the CodePayments); provided, however, that REIT Payments in excess of the amounts set forth in ~~clauses~~ subparagraphs (i) and (ii) above may be made if ~~the General Partner~~PPRP, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ would not adversely affect the REIT ~~Partner’s~~ Member's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and ~~shall~~ be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableFiscal Year. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT ~~Partner~~ Member from failing to qualify as a REIT under the Code by reason of such REIT ~~Partner’s~~ Member's share of items, including ~~distributions,~~ reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the ~~Partnership~~Company, and this Section 15.12 shall be interpreted and applied to effectuate such purpose; provided, however, that such amount shall not carry over for more than five years, and if not paid within such five year period, shall expire; provided further, that (a) as REIT Payments are made, such payments shall be applied first to carry over amounts outstanding, if any, and (b) with respect to carry over amounts for more than one Fiscal Year, such payments shall be applied to the earliest Fiscal Year first.

Appears in 1 contract

Samples: Operating Agreement (Pan Pacific Retail Properties Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, with respect to any period in which the Parent has elected to be subject to tax as a REIT for U.S. federal income tax purposes, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the ~~Partnership~~ Company to any REIT ~~Partner~~ Member or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT ~~Partner~~ Member for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the ~~General Partner~~ Manager in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT ~~Partner~~ Member shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT ~~Partner~~Member’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT ~~Partner~~Member’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the ~~General Partner~~Manager, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT ~~Partner~~Member’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following ~~Partnership~~ Fiscal Year if such carry over does not adversely affect the REIT ~~Partner~~Member’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than ~~three Partnership~~ five (5) Fiscal Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT ~~Partner~~ Member from failing to qualify as a REIT under the Code by reason of such REIT ~~Partner~~Member’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the ~~Partnership~~Company, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Alexander & Baldwin, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner (or, if the REIT Partner is a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) of a REIT, to such REIT) for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i1) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s (or, if the REIT Partner is a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) of a REIT, such REIT’s) total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner (or, if the REIT Partner is a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) of a REIT, by such REIT) from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii2) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s (or, if the REIT Partner is a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) of a REIT, such REIT’s) total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner (or, if the REIT Partner is a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) of a REIT, by such REIT) from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s (or, if the REIT Partner is a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) of a REIT, such REIT’s) ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableFiscal Year. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT Partner (or, if the REIT Partner is a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) of a REIT, such REIT) from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Aimco Properties L.P.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to, for or with respect to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT ~~Payment”~~PAYMENT"), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, to, for or with respect to such REIT Partner shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) four and nine-tenths percent (4.9%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (iib) an amount equal to the excess, if any, of (ai) twenty-four percent (24%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (ia) and (iib) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s 's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableFiscal Year. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s 's share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Excel Realty Trust Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that LA\4346025.7 is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Hudson Pacific Properties, L.P.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that LA\4346025.6 is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Hudson Pacific Properties, L.P.)

Limitation to Preserve REIT Status. Notwithstanding ---------------------------------- anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the ------------ REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the Managing General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of:: 108 (i) an amount equal to the excess, if any, of (a) four and ~~nine-~~nine- tenths percent (4.9%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in -------- ------- clauses (i) and (ii) above may be made if the Managing General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s 's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~16.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableYear. The purpose of the limitations contained in this Section ~~15.12~~ 16.11 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s 's share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 16.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Westfield America Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the ~~Partnership~~ Company or any of the Holders to, for or with respect to any REIT ~~Partner~~ Member or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the REIT ~~Partner~~ Member for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the ~~General Partner~~ Managing Member in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, to, for or with respect to such REIT ~~Partner~~ Member shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) four and nine-tenths percent (4.9%) of the REIT ~~Partner’s~~ Member's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (iib) an amount equal to the excess, if any, of (ai) ~~twenty-four percent (~~24%) % of the REIT ~~Partner’s~~ Member's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.;

Appears in 1 contract

Samples: Limited Liability Company Agreement (Oasis Residential Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount contemplated by this Agreement to be paid, credited, distributed or reimbursed ~~by the Partnership~~ to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its sole discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Code Section 856(c)(5)(G~~) of the Code~~)) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Code Section 856(c)(5)(G~~) of the Code~~)); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Code Section 856(c)(5)(G~~) of the Code~~)) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Code Section 856(c)(5)(G~~) of the Code~~)); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three (3) Partnership Years, ~~and~~ and, after such time, any such ~~remaining payments~~ REIT Payment shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Workspace Property Trust)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, with respect to any period in which the Initial Limited Partner has elected to be treated as a REIT for federal income tax purposes, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to ~~any REIT~~ the Initial Limited Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the ~~REIT~~ Initial Limited Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3) that is not described in subsections (A) through (I) of Code Section 856(c)(2) or subsections (A) through (I) of Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to ~~such REIT~~ the Initial Limited Partner shall not exceed the lesser of~~: (i)~~ : an amount equal to the excess, if any, of (ai) four ~~and nine-tenths~~ percent (~~4.9~~4%) of the ~~REIT~~ Initial Limited Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year ~~that is described in subsections (A) through (I) of Code Section 856(c)(2)~~ over (bii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the ~~REIT~~ Initial Limited Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Jones Lang LaSalle Income Property Trust, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i1) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii2) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableFiscal Year. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Apartment Investment & Management Co)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to ~~any REIT~~ the Parent, the General Partner or ~~its~~ the Parent Limited Partner or their members, officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”), would constitute gross income to the ~~REIT Partner~~ Parent for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), ~~then, notwithstanding any other provision of this Agreement,~~ then the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to ~~such REIT~~ the Parent, the General Partner or the Parent Limited Partner, shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) ~~four and nine-tenths percent (~~4.9%) % of the ~~REIT Partner~~Parent’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the ~~REIT Partner~~ Parent from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (iib) an amount equal to the excess, if any, of (ai) ~~twenty-four percent (~~24%) % of the ~~REIT Partner~~Parent’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the ~~REIT Partner~~ Parent from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in ~~clauses~~ paragraphs (ia) and (iib) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the ~~REIT Partner~~Parent’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableYear. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent ~~any REIT Partner~~ the Parent from failing to qualify as a REIT under the Code by reason of ~~such REIT Partner~~the Parent’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Aviv REIT, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, ~~credited, distributed~~ credited or reimbursed (and for purposes of clarification, excluding distributions to the General Partner on account of its Class B Units including pursuant to Article 5 or Section 13.2A(4)) by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four ~~and nine-tenths~~ percent (~~4.9~~4%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments ~~and~~ or any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (MacKenzie Realty Capital, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to ~~any REIT~~ the Parent or the General Partner or ~~its~~ their managers, officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the ~~REIT Partner~~ Parent for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to ~~such REIT Partner~~ the Parent or the General Partner, shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) ~~four and nine-tenths percent (~~4.9%) % of the ~~REIT Partner~~Parent’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the ~~REIT Partner~~ Parent from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) ~~twenty-four percent (~~24%) % of the ~~REIT Partner~~Parent’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the ~~REIT Partner~~ Parent from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the ~~REIT Partner~~Parent’s ability to qualify as a REIT. To the extent that REIT Payments may not be ~~made~~ payable in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableYear. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent ~~any REIT Partner~~ the Parent from failing to qualify as a REIT under the Code by reason of ~~such REIT Partner~~the Parent’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Ny Credit Corp.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: ~~(i)~~ A. an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); or ~~(ii)~~ B. an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code 82 Section 856(c)(3) (but not including the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose. Notwithstanding the foregoing, this Section 15.12 shall not apply for the taxable year ending December 31, 2024, and for any subsequent taxable year unless and until the REIT Limited Partner elects to attempt to qualify as a REIT.

Appears in 1 contract

Samples: Limited Partnership Agreement (Creative Media & Community Trust Corp)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the ~~Partnership~~ Partner ship to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would ~~constitute gross income to~~ otherwise cause the REIT Partner ~~for purposes~~ to fail to satisfy the requirements of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel or a ruling from the IRS that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s 's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableYear. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s 's share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Northstar Realty)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT ~~Payment”~~PAYMENT"), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); ~~provided~~PROVIDED, ~~however~~HOWEVER, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s 's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableFiscal Year. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s 's share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Apartment Investment & Management Co)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to, for or with respect to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, to, for or with respect to such REIT Partner shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (iib) an amount equal to the excess, if any, of (ai) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.;

Appears in 1 contract

Samples: Agreement of Limited Partnership (New Plan Excel Realty Trust Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, with respect to any period in which CLNY has elected to be treated as a REIT for federal income tax purposes, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the ~~Partnership~~ Company to any REIT ~~Partner~~ Member or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT ~~Partner~~ Member (as determined for purposes of Code Section 856(c)(2) or Code Section 856(c)(3)), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the ~~General Partner~~ Managing Member in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT ~~Partner~~ Member shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT ~~Partner~~Member’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT ~~Partner~~Member’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the ~~General Partner~~Managing Member, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT ~~Partner~~Member’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following ~~Partnership~~ Fiscal Year if such carry over does not adversely affect the REIT ~~Partner~~Member’s ability to qualify as a ~~REIT,~~ REIT provided, however, that ~~any~~ such ~~REIT Payment~~ amounts shall not ~~be carried~~ carry over for more than ~~three Partnership~~ five Fiscal Years, and ~~any~~ if not paid within such ~~remaining~~ five Fiscal Year period, shall expire; and provided further that (i) as REIT Payments are made, such payments shall ~~no longer~~ be ~~due~~ applied first to carry over amounts outstanding, if any, and ~~payable~~(ii) with respect to carry over amounts for more than one Fiscal Year, such payments shall be applied to the earliest Fiscal Year first. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT ~~Partner~~ Member from failing to qualify as a REIT under the Code by reason of such REIT ~~Partner~~Member’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the ~~Partnership~~Company, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Colony Financial, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the Table of Contents General Partner in its sole and absolute discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Spirit Realty, L.P.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s 's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableYear. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT Partner from failing to qualify as a REIT 60 62 under the Code by reason of such REIT Partner’s 's share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Fortress Investment Corp)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to, for or with respect to any Partner or Assignee that is, or has made an election to qualify as, a REIT, or that is a Qualified REIT ~~Partner~~ Subsidiary (any of which, a "REIT Partner"), or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, to, for or with respect to such REIT Partner shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) four and nine-tenths percent ~~(4.9~~0.9%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) ~~through~~ through (Ib) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or or (iib) an amount equal to the excess, if any, of (ai) twenty-four percent (24%) of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I1) of Code Section 856(c)(3) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (ia) and (iib) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the REIT Partner’s 's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableFiscal Year. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s 's share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose. For purposes of this Section 5.12, determinations with respect to a REIT Partner that is a Qualified REIT Subsidiary shall be made with respect to the REIT Partner's shareholder.

Appears in 1 contract

Samples: Limited Partnership Agreement (Prologis Trust)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to or any Partners to, for or with respect any Partner that is a REIT ~~Partner~~ ("REIT Partner") or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “"REIT Payment”"), would constitute gross income to the REIT Partner for purposes of ~~Code~~ Section ~~856(c)(2~~856 (c)(2) or ~~Code~~ Section 856(c)(3)) of the Code, then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, to, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (ax) four and nine-tenths percent (4.9%) of the REIT ~~Partner’s~~ Partner total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in ~~subsections~~ subSections (A) through (IH) of ~~Code~~ Section 856(c)(2) over (by) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) derived by the REIT Partner from sources other than those described in ~~subsections~~ subSections (A) through (IH) of ~~Code~~ Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (ax) ~~twenty-four percent (~~24%) % of the REIT Partner’s 's total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in ~~subsections~~ subSections (A) through (I) of ~~Code~~ Section 856(c)(3) over (by) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(3)) derived by the REIT Partner from sources other than those described in ~~subsections~~ subSections (A) through (I) of ~~Code~~ Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.;

Appears in 1 contract

Samples: Limited Partnership Agreement (Mission West Properties/New/)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent ~~that the~~ any amount ~~to be~~ paid, ~~credited, distributed~~ credited or reimbursed by to the ~~Partnership to any REIT Partner~~ Managing Member or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the ~~REIT Partner~~ Managing Member for purposes of ~~Code Section~~ Sections 856(c)(2) or ~~Code Section~~ 856(c)(3)) of the Code, then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the ~~General Partner~~ Managing Member in its discretion from among items of potential ~~distribution,~~ reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, to, for or with respect to ~~such REIT Partner~~ the Managing Member shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and ~~nine~~seventeen one-~~tenths~~ hundredths percent (~~4.9~~4.17%) of the ~~REIT Partner~~Managing Member’s total gross income (but ~~excluding~~ not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (IH) of ~~Code~~ Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) of the Code) derived by the ~~REIT Partner~~ Managing Member from sources other than those described in subsections (A) through (IH) of ~~Code~~ Section 856(c)(2) of the Code (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-~~four~~ five percent (2425%) of the ~~REIT Partner~~Managing Member’s total gross income (but ~~excluding~~ not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(3)) of the Code derived by the ~~REIT Partner~~ Managing Member from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.;

Appears in 1 contract

Samples: Limited Liability Company Agreement (Health Care Property Investors Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: ~~(i)~~ A. an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); or ~~(ii)~~ B. an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section ~~856(c)(5)(G~~856(c) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose. Notwithstanding the foregoing, this Section 15.12 shall not apply for the taxable year ending December 31, 2020 and for any subsequent taxable year unless and until General Partner is realistically able to re-qualify as a REIT.

Appears in 1 contract

Samples: Limited Partnership Agreement (Mobile Infrastructure Corp)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to any REIT ~~Partner~~ Party or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the Parent REIT ~~Partner~~ for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT ~~Partner~~ Party shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT ~~Partner~~Party’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (IH) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT ~~Partner~~ Party from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT ~~Partner~~Party’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT ~~Partner~~ Party from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the ~~REIT Partner~~Parent REIT’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableYear. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent ~~any~~ the Parent REIT ~~Partner~~ from failing to qualify as a REIT under the Code by reason of ~~such~~ any REIT ~~Partner~~Party’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Arbor Realty Trust Inc)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the Partnership to ~~any REIT~~ the General Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the ~~REIT~~ General Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), ~~then, notwithstanding any other provision of this Agreement,~~ then the amount of such REIT Payments, as selected by the General Partner in its sole discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to ~~such REIT~~ the General Partner shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) ~~four and nine-tenths percent (~~4.9%) % of the ~~REIT~~ General Partner’s total gross income (~~but excluding~~ including the amount of any REIT Payments ~~and amounts excluded from gross income pursuant to~~ after application of this Section ~~856(c)(5)(G) of the Code~~16.12) for the Partnership Year ~~that is described in subsections (A) through (I) of Code Section 856(c)(2)~~ over (bii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the ~~REIT~~ General Partner from sources other than those described in subsections (A) through (IH) of Code Section 856(c)(2) (~~but not~~ including the amount of any REIT Payments ~~and amounts excluded from gross income pursuant to~~ after application of this Section ~~856(c)(5)(G) of the Code~~16.12); or (iib) an amount equal to the excess, if any, of (ai) ~~twenty-four percent (~~24%) % of the ~~REIT~~ General Partner’s total gross income (~~but excluding~~ including the amount of any REIT Payments ~~and amounts excluded from gross income pursuant to~~ after application of this Section ~~856(c)(5)(G) of the Code~~16.12) for the Partnership Year ~~that is described in subsections (A) through (I) of Code Section 856(c)(3)~~ over (bii) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the ~~REIT~~ General Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (~~but not~~ including the amount of any REIT Payments ~~and amounts excluded from gross income pursuant to~~ after application of this Section ~~856(c)(5)(G) of the Code~~16.12); provided, however, that REIT Payments in excess of the amounts set forth in ~~clauses~~ paragraphs (ia) and (iib) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts ~~should~~ shall not adversely affect the ~~REIT~~ General Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section ~~15.12~~16.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payableYear. The purpose of the limitations contained in this Section ~~15.12~~ 16.12 is to prevent ~~any REIT~~ the General Partner from failing to qualify as a REIT under the Code by reason of ~~such REIT~~ the General Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 16.12 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Bellingham II Associates, L.L.C.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to ~~any REIT~~ the General Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the ~~REIT~~ General Partner for purposes of ~~Code~~ Section 856(c)(2) or ~~Code~~ Section 856(c)(3)) of the Code, then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its sole and absolute discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership ~~Year~~ taxable year so that the REIT Payments, as so reduced, for or with respect to ~~such REIT~~ the General Partner shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) ~~four and nine-tenths percent (~~4.9%) % of the ~~REIT~~ General Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership ~~Year~~ taxable year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(2) of the Code over (bii) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(2)) of the Code) derived by the ~~REIT~~ General Partner from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(2) of the Code (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); or (iib) an amount equal to the excess, if any, of (ai) ~~twenty-four percent (~~24%) % of the ~~REIT~~ General Partner’s total gross income (but excluding the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code) for the Partnership ~~Year~~ taxable year that is described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code over (bii) the amount of gross income (within the meaning of ~~Code~~ Section 856(c)(3)) of the Code) derived by the ~~REIT~~ General Partner from sources other than those described in subsections (A) through (I) of ~~Code~~ Section 856(c)(3) of the Code (but not including the amount of any REIT Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (ia) and (iib) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the ~~REIT~~ General Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership ~~Year~~ taxable year as a consequence of the limitations set forth in this Section ~~15.12~~12.10, such REIT Payments shall carry over and shall be treated as arising in the following Partnership ~~Year~~ taxable year if such carry over does not adversely affect the ~~REIT~~ General Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership ~~Years~~taxable years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section ~~15.12~~ 12.10 is to prevent ~~any REIT~~ the General Partner from failing to qualify as a REIT under the Code by reason of ~~such REIT~~ the General Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section ~~15.12~~ 12.10 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Limited Partnership Agreement (Generation Income Properties, Inc.)

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, with respect to any period in which CLNS Credit has elected to be treated as a REIT for federal income tax purposes, to the extent that the amount ~~to be~~ paid, credited, distributed or reimbursed by the ~~Partnership~~ Company to any REIT ~~Partner~~ Member or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT ~~Partner~~ Member (as determined for purposes of Code Section 856(c)(2) or Code Section 856(c)(3)), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the ~~General Partner~~ Managing Member in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any ~~Partnership~~ Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT ~~Partner~~ Member shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT ~~Partner~~Member’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT ~~Partner~~Member’s total gross income (but excluding the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments) for the ~~Partnership~~ Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT ~~Partner~~ Member from sources other than those described in subsections (A) Table of Contents through (I) of Code Section 856(c)(3) (but not including the amount of any REIT ~~Payments and amounts excluded from gross income pursuant to Section 856(c)(5)(G) of the Code~~Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the ~~General Partner~~Managing Member, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT ~~Partner~~Member’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a ~~Partnership~~ Fiscal Year as a consequence of the limitations set forth in this Section ~~15.12~~15.11, such REIT Payments shall carry over and shall be treated as arising in the following ~~Partnership~~ Fiscal Year if such carry over does not adversely affect the REIT ~~Partner~~Member’s ability to qualify as a REIT, ; provided, however, that ~~any~~ such ~~REIT Payment~~ amounts shall not ~~be carried~~ carry over for more than ~~three Partnership~~ five Fiscal Years, and ~~any~~ if not paid within such ~~remaining~~ five Fiscal Year period, shall expire; and provided further that (i) as REIT Payments are made, such payments shall ~~no longer~~ be ~~due~~ applied first to carry over amounts outstanding, if any, and ~~payable~~(ii) with respect to carry over amounts for more than one Fiscal Year, such payments shall be applied to the earliest Fiscal Year first. The purpose of the limitations contained in this Section ~~15.12~~ 15.11 is to prevent any REIT ~~Partner~~ Member from failing to qualify as a REIT under the Code by reason of such REIT ~~Partner~~Member’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the ~~Partnership~~Company, and this Section ~~15.12~~ 15.11 shall be interpreted and applied to effectuate such purpose.

Appears in 1 contract

Samples: Master Combination Agreement (NorthStar Real Estate Income II, Inc.)

Common use of Limitation to Preserve REIT Status Clause in Contracts