Common use of Limitation to Preserve REIT Status Clause in Contracts

Limitation to Preserve REIT Status. To the extent that any amount paid or credited to the General Partner or the General Partner Entity or its officers, directors, employees or agents pursuant to Section 7.4 or Section 7.7 hereof would constitute gross income to the General Partner Entity or the General Partner (if it is to be qualified as a REIT) for purposes of Section 856(c)(2) or 856(c)(3) of the Code (a “General Partner Payment”) then, notwithstanding any other provision of this Agreement, the amount of such General Partner Payments for any fiscal year shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 5% of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) total gross income (but not including the amount of any General Partner Payments) for the fiscal year over (b) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) 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 or the General Partner’s (if it is to be qualified as a REIT) total gross income (but not including the amount of any General Partner Payments) for the fiscal year over (b) the amount of gross income (within the meaning of Section 856(c)(3) of the Code) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code (but not including the amount of any General Partner Payments); provided, however, that General Partner Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the General Partner Entity or the General Partner (if it is to be qualified as a REIT), as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) ability to qualify as a REIT. To the extent General Partner Payments may not be made in a year due to the foregoing limitations, such General Partner Payments shall carry over and 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 carry over amounts outstanding, if any, and (ii) with respect to carry over amounts for more than one Partnership Year, such payments shall be applied to the earliest Partnership Year first.

Limitation to Preserve REIT Status. To the extent that any amount paid or credited to the General Partner or the General Partner Entity or its officers, directors, employees or agents pursuant to Section 7.4 or Section 7.7 hereof would constitute gross income to the General Partner Entity or the General Partner (if it is to be qualified as a REIT) for purposes of Section 856(c)(2) or 856(c)(3) of the Code (a “General Partner Payment”) then, notwithstanding any other provision of this Agreement, the amount of such General Partner Payments for any fiscal year shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 5% of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) total gross income (but not including the amount of any General Partner Payments) for the fiscal year over (b) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) 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 or the General Partner’s (if it is to be qualified as a REIT) total gross income (but not including the amount of any General Partner Payments) for the fiscal year over (b) the amount of gross income (within the meaning of Section 856(c)(3) of the Code) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code (but not including the amount of any General Partner Payments); provided, however, that General Partner Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the General Partner Entity or the General Partner (if it is to be qualified as a REIT), as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) ability to qualify as a REIT. To the extent General Partner Payments may not be made in a year due to the foregoing limitations, such General Partner Payments shall carry over and 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 carry over amounts outstanding, if any, and (ii) with respect to carry over amounts for more than one Partnership Year, such payments shall be applied to the earliest Partnership Year first.

Limitation to Preserve REIT Status. To Notwithstanding anything else in this Agreement, with respect to any period in which the General Partner Entity or the General Partner (as the case may be) has elected to be treated as a REIT for federal income tax purposes, to the extent that any amount paid paid, credited, distributed or credited reimbursed by the Partnership to the General Partner Entity or the General Partner Entity (as the case may be) or its officers, directors, employees or agents pursuant to Section 7.4 or Section 7.7 hereof hereof, would constitute gross income to the General Partner Entity or the General Partner (if it is to be qualified as a REITthe case may be) for purposes of Section 856(c)(2) or 856(c)(3) of the Code (a “General Partner Payment”) then, notwithstanding any other provision of this Agreement, the amount of such General Partner Payments 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 fiscal year Partnership Year so that the General Partner Payments, as so reduced, for or with respect to the General Partner Entity or the General Partner (as the case may be) shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 5% four and nine-tenths percent (4.9%) of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REITthe case may be) total gross income (but not including the amount of any General Partner Payments) for the fiscal year over (b) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REITthe case may be) from sources other than those described in subsections (A) through (HI) 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% twenty-four and nine-tenths percent (24.9%) of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REITthe case may be) total gross income (but not including the amount of any General Partner Payments) for the fiscal year over (b) the amount of gross income (within the meaning of Section 856(c)(3) of the Code) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code (but not including the amount of any General Partner Payments); provided, however, that General Partner Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above of this Section 15.13 may be made if the General Partner Entity or the General Partner (if it is to be qualified as a REITthe case may be), as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REITthe case may be) ability to qualify as a REIT. To the extent General Partner Payments may not be made in a year Partnership Year due to the foregoing limitationslimitations set forth in this Section 15.13, such General Partner Payments shall carry over and be treated as arising in the following yearPartnership Year, if such carry over does not adversely affect the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) ability to qualify as a REIT; 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 carry over amounts outstanding, if any, and (ii) with respect to carry over amounts for more than one (1) Partnership Year, such payments shall be applied to the earliest Partnership Year first. The purpose of the limitations contained in this Section 15.13 is to prevent the General Partner Entity or the General Partner (as the case may be) from failing to qualify as a REIT by reason of the General Partner Entity’s or the General Partner’s (as the case may be) share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly, from the Partnership, and this Section 15.13 shall be interpreted and applied to effectuate such purpose.

Limitation to Preserve REIT Status. To If the General Partner attempts to qualify as a REIT, to the extent that any amount paid or credited to the General Partner or the General Partner Entity or any of its officers, directorstrustees, employees or agents pursuant to Section 7.4 or Section 7.7 hereof would constitute gross income to the General Partner Entity or the General Partner (if it is to be qualified as a REIT) for purposes of Section 856(c)(2) or 856(c)(3) of the Code (a “General Partner Payment”) then, notwithstanding any other provision of this Agreement, the amount of such General Partner Payments Payment for any fiscal year Fiscal Year shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 54% of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) total gross income (within the meaning of Section 856(c)(3) of the Code but not including the amount of any General Partner Payments) for the fiscal year Fiscal Year which is described in subsections (A) though (I) of Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) 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) 2524% of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) total gross income (but not including the amount of any General Partner Payments) for the fiscal year 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 CodeCode but not including the amount of any General Partner Payments) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code (but not including the amount of any General Partner Payments)Code; provided, however, that General Partner Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the General Partner Entity or the General Partner (if it is to be qualified as a REIT)Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) ability to qualify as a REIT. To the extent General Partner Payments may not be made in a year given Fiscal Year due to the foregoing limitations, such General Partner Payments shall carry over and be treated as arising in the following year, ; provided, however, that such amounts shall not carry over for more than five yearsFiscal Years, and if not paid within such five year Fiscal Year period, shall expire; provided, further, and provided further that (i) as General Partner Payments are made, such payments shall be applied first to carry over amounts outstanding, if any, and (ii) with respect to carry over amounts for more than one Partnership Fiscal Year, such payments shall be applied to the earliest Partnership Fiscal Year first.

Limitation to Preserve REIT Status. To If the General Partner Entity attempts to qualify as a REIT, to the extent that any amount paid or credited to the General Partner or the General Partner Entity or any of its officers, directorstrustees, employees or agents pursuant to Section 7.4 or Section 7.7 hereof would constitute gross income to the General Partner Entity or the General Partner (if it is to be qualified as a REIT) for purposes of Section 856(c)(2) or 856(c)(3) of the Code (a “General Partner Payment”) then, notwithstanding any other provision of this Agreement, the amount of such General Partner Payments Payment for any fiscal year Fiscal Year shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 54% of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) total gross income (within the meaning of Section 856(c)(3) of the Code but not including the amount of any General Partner Payments) for the fiscal year Fiscal Year which is described in subsections (A) though (I) of Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) 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) 2524% of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) total gross income (but not including the amount of any General Partner Payments) for the fiscal year 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 CodeCode but not including the amount of any General Partner Payments) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code (but not including the amount of any General Partner Payments)Code; provided, however, that General Partner Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the General Partner Entity or the General Partner (if it is to be qualified as a REIT)Entity, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) ability to qualify as a REIT. To the extent General Partner Payments may not be made in a year given Fiscal Year due to the foregoing limitations, such General Partner Payments shall carry over and be treated as arising in the following year, ; provided, however, that such amounts shall not carry over for more than five yearsFiscal Years, and if not paid within such five year Fiscal Year period, shall expire; provided, further, and provided further that (i) as General Partner Payments are made, such payments shall be applied first to carry over amounts outstanding, if any, and (ii) with respect to carry over amounts for more than one Partnership Fiscal Year, such payments shall be applied to the earliest Partnership Fiscal Year first.

Limitation to Preserve REIT Status. To If the General Partner Entity attempts to qualify as a REIT, to the extent that any amount paid or credited to the General Partner or the General Partner Entity or any of its officers, directorstrustees, employees or agents pursuant to Section 7.4 or Section 7.7 hereof would constitute gross income to the General Partner Entity or the General Partner (if it is to be qualified as a REIT) for purposes of Section 856(c)(2) or 856(c)(3) of the Code (a “General Partner Payment”) then, notwithstanding any other provision of this Agreement, the amount of such General Partner Payments Payment for any fiscal year Fiscal Year shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 54% of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) total gross income (within the meaning of Section 856(c)(3) of the Code but not including the amount of any General Partner Payments) for the fiscal year Fiscal Year which is described in subsections (A) though (H) of Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) 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) 2524% of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) total gross income (but not including the amount of any General Partner Payments) for the fiscal year 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 CodeCode but not including the amount of any General Partner Payments) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code (but not including the amount of any General Partner Payments)Code; provided, however, that General Partner Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the General Partner Entity or the General Partner (if it is to be qualified as a REIT)Entity, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) ability to qualify as a REIT. To the extent General Partner Payments may not be made in a year given Fiscal Year due to the foregoing limitations, such General Partner Payments shall carry over and be treated as arising in the following year, ; provided, however, that such amounts shall not carry over for more than five yearsFiscal Years, and if not paid within such five year Fiscal Year period, shall expire; provided, further, and provided further that (i) as General Partner Payments are made, such payments shall be applied first to carry over amounts outstanding, if any, and (ii) with respect to carry over amounts for more than one Partnership Fiscal Year, such payments shall be applied to the earliest Partnership Fiscal Year first.

Limitation to Preserve REIT Status. To the extent that any amount paid or credited to the General Partner or the General Partner Managing Member Entity or its any of their officers, directors, employees or agents pursuant to Section Sections 7.4 or Section 7.7 hereof would constitute gross income to the General Partner Managing Member Entity or the General Partner (if it is to be qualified as a REIT) for purposes of Section Sections 856(c)(2) or 856(c)(3) of the Code (a “General Partner Managing Member Payment”) then, notwithstanding any other provision of this Agreement, the amount of such General Partner Payments Managing Member Payment for any fiscal year Fiscal Year shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 54% of the General Partner Managing Member Entity’s or the General Partner’s (if it is to be qualified as a REIT) total gross income (within the meaning of Section 856(c)(3) of the Code but not including the amount of any General Partner Managing Member Payments) for the fiscal year Fiscal Year which is described in subsections (A) though (H) of Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by the General Partner Managing Member Entity or the General Partner (if it is to be qualified as a REIT) 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 Managing Member Payments); or (ii) an amount equal to the excess, if any of (a) 2524% of the General Partner Managing Member Entity’s or the General Partner’s (if it is to be qualified as a REIT) total gross income (but not including the amount of any General Partner Managing Member Payments) for the fiscal year 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 CodeCode but not including the amount of any Managing Member Payments) derived by the General Partner Managing Member Entity or the General Partner (if it is to be qualified as a REIT) from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code (but not including the amount of any General Partner Payments)Code; provided, however, that General Partner Managing Member Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the General Partner Entity or the General Partner (if it is to be qualified as a REIT)Managing Member Entity, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the General Partner Managing Member Entity’s or the General Partner’s (if it is to be qualified as a REIT) ability to qualify as a REIT. To the extent General Partner Managing Member Payments may not be made in a year given Fiscal Year due to the foregoing limitations, such General Partner Managing Member Payments shall carry over and be treated as arising in the following year, ; provided, however, that such amounts shall not carry over for more than five years(5) Fiscal Years, and if not paid within such five year (5) Fiscal Year period, shall expire; provided, further, and provided further that (i) as General Partner Managing Member Payments are made, such payments shall be applied first to carry over amounts outstanding, if any, and (ii) with respect to carry over amounts for more than one Partnership Fiscal Year, such payments shall be applied to the earliest Partnership Fiscal Year first.

Limitation to Preserve REIT Status. To the extent that any amount paid or credited to the Managing General Partner or the General Partner Entity or its officers, directors, employees or agents pursuant to Section 7.4 or Section 7.7 7.6 hereof would constitute gross income to the Managing General Partner Entity or the General Partner (if it is to be qualified as a REIT) for purposes of Section 856(c)(2Sections 856 (c) (2) or 856(c)(3856 (c) (3) of the Code (a “"Managing General Partner Payment”") then, notwithstanding any other provision of this Agreement, the amount of such Managing General Partner Payments for any fiscal Partnership taxable year shall not exceed the lesser of: (iA) an amount equal to the excess, if any, of (a1) 5_____% of the General Partner Entity’s or the Managing General Partner’s (if it is to be qualified as a REIT) 's total gross income (but not including the amount of any Managing General Partner Payments) for the fiscal Partnership taxable year which is described in subsections (A) through (H) of Section 856 (c) (2) of the Code over (b2) the amount of gross income (within the meaning of Section 856(c)(2856(c) (2) of the Code) derived by the Managing General Partner Entity or the General Partner (if it is to be qualified as a REIT) from sources other than those described in subsections (A) through (H) of Section 856(c)(2856(c) (2) of the Code (but not including the amount of any Managing General Partner Payments); or (iiB) an amount equal to the excess, if any any, of (a1) 25__% of the General Partner Entity’s or the Managing General Partner’s (if it is to be qualified as a REIT) 's total gross income (but not including the amount of any Managing General Partner Payments) for the fiscal Partnership taxable year which is described in subsections (A) through (I) of Section 856 (c) (3) of the Code over (b2) the amount of gross income (within the meaning of Section 856(c)(3856 (c) (3) of the Code) derived by the Managing General Partner Entity or the General Partner (if it is to be qualified as a REIT) from sources other than those described in subsections (A) through (I) of Section 856(c)(3856 (c) (3) of the Code (but not including the amount of any Managing General Partner Payments); provided, however, that Managing General Partner Payments in excess of the amounts set forth in subparagraphs (iA) and (iiB) above may be made if the Managing General Partner Entity or the General Partner (if it is to be qualified as a REIT)Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the General Partner Entity’s or the Managing General Partner’s (if it is to be qualified as a REIT) 's ability to qualify as a REIT. To the extent Managing General Partner Payments may not be made in a year due to the foregoing limitations, such Managing General Partner Payments shall carry over and 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, provided further, that (ia) as Managing General Partner Payments are made, such payments shall be applied first to carry over amounts outstanding, if any, any and (iib) with respect to carry over amounts for more than one Partnership Yeartaxable year, such payments shall be applied to the earliest Partnership Year taxable year first.

Limitation to Preserve REIT Status. To If the General Partner Entity attempts to qualify as a REIT, to the extent that any amount paid or credited to the General Partner or the General Partner Entity or any of its officers, directorstrustees, employees or agents pursuant to Section 7.4 or Section 7.7 hereof would constitute gross income to the General Partner Entity or the General Partner (if it is to be qualified as a REIT) for purposes of Section 856(c)(2) or 856(c)(3) of the Code (a “General Partner Payment”) then, notwithstanding any other provision of this Agreement, the amount of such General Partner Payments Payment for any fiscal year Fiscal Year shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 54% of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) total gross income (within the meaning of Section 856(c)(3) of the Code but not including the amount of any General Partner Payments) for the fiscal year Fiscal Year which is described in subsections (A) though (I) of Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) 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) 2524% of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) total gross income (but not including the amount of any General Partner Payments) for the fiscal year 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 CodeCode but not including the amount of any General Partner Payments) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code (but not including the amount Code; Table of any General Partner Payments); Contents provided, however, that General Partner Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the General Partner Entity or the General Partner (if it is to be qualified as a REIT)Entity, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) ability to qualify as a REIT. To the extent General Partner Payments may not be made in a year given Fiscal Year due to the foregoing limitations, such General Partner Payments shall carry over and be treated as arising in the following year, ; provided, however, that such amounts shall not carry over for more than five yearsFiscal Years, and if not paid within such five year Fiscal Year period, shall expire; provided, further, and provided further that (i) as General Partner Payments are made, such payments shall be applied first to carry over amounts outstanding, if any, and (ii) with respect to carry over amounts for more than one Partnership Fiscal Year, such payments shall be applied to the earliest Partnership Fiscal Year first.. Table of Contents

Limitation to Preserve REIT Status. To the extent that any amount paid or credited to the General Partner or the General Partner Entity or its officers, directors, employees or agents pursuant to Section 7.4 or Section 7.7 hereof would constitute gross income to the General Partner Entity or the General Partner (if it is to be qualified as a REIT) for purposes of Section 856(c)(2) or 856(c)(3) of the Code (a “"General Partner Payment”) "), as determined by the General Partner, then, notwithstanding any other provision of this Agreement, the amount of such General Partner Payments for any fiscal year shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 54.20% of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) 's total gross income (but not including the amount of any General Partner Payments) for the fiscal year which is described in subsections (A) though (H) of Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) 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 or the General Partner’s (if it is to be qualified as a REIT) '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 or the General Partner (if it is to be qualified as a REIT) from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code (but not including the amount of any General Partner Payments); providedPROVIDED, howeverHOWEVER, that General Partner Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the General Partner Entity or the General Partner (if it is to be qualified as a REIT)Entity, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) 's ability to qualify as a REIT. To the extent General Partner Payments may not be made in a year due to the foregoing limitations, such General Partner Payments shall carry over and be treated as arising in the following year, providedPROVIDED, howeverHOWEVER, that such amounts shall not carry over for more than five years, and if not paid within such five year period, shall expire; provided, furtherPROVIDED FURTHER, that (i) as General Partner Payments are made, such payments shall be applied first to carry over amounts outstanding, if any, and (ii) with respect to carry over amounts for more than one Partnership Year, such payments shall be applied to the earliest Partnership Year first.

Limitation to Preserve REIT Status. To If the General Partner Entity attempts to qualify as a REIT, to the extent that any amount paid or credited to the General Partner or the General Partner Entity or any of its officers, directorstrustees, employees or agents pursuant to Section 7.4 or Section 7.7 hereof would constitute gross income to the General Partner Entity or the General Partner (if it is to be qualified as a REIT) for purposes of Section 856(c)(2) or 856(c)(3) of the Code (a “General Partner Payment”) then, notwithstanding any other provision of this Agreement, the amount of such General Partner Payments Payment for any fiscal year Fiscal Year shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 54% of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) total gross income (within the meaning of Section 856(c)(3) of the Code but not including the amount of any General Partner Payments) for the fiscal year Fiscal Year which is described in subsections (A) though (I) of Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) 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) 2524% of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) total gross income (but not including the amount of any General Partner Payments) for the fiscal year 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 CodeCode but not including the amount of any General Partner Payments) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code (but not including the amount of any General Partner Payments)Code; provided, however, that General Partner Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the General Partner Entity or the General Partner (if it is to be qualified as a REIT)Entity, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) ability to qualify as a REIT. To the extent General Partner Payments may not be made in a year given Fiscal Year due to the foregoing limitations, such General Partner Payments shall carry over and be treated as arising in the following year, ; provided, however, that such amounts shall not carry over for more than five yearsFiscal Years, and if not paid within such five year Fiscal Year period, shall expire; provided, further, and provided further that (i) as General Partner Payments are made, such payments shall be applied first to carry over amounts outstanding, if any, and (ii) with respect to carry over amounts for more than one Partnership Fiscal Year, such payments shall be applied to the earliest Partnership Fiscal Year first.

Limitation to Preserve REIT Status. To the extent that any amount paid or credited to the General Partner or the General Partner Entity or its officers, directors, employees or agents pursuant to Section 7.4 or Section 7.7 hereof would constitute gross income to the General Partner Entity or the General Partner (if it is to be qualified as a REIT) for purposes of Section 856(c)(2) or 856(c)(3) of the Code (a “General Partner Payment”) then, notwithstanding any other provision of this Agreement, the amount of such General Partner Payments for any fiscal year shall not exceed the lesser of: : (i) an amount equal to the excess, if any, of (a) 5% of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) total gross income (but not including the amount of any General Partner Payments) for the fiscal year over (b) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) 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 or (ii) an amount equal to the excess, if any of (a) 25% of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) total gross income (but not including the amount of any General Partner Payments) for the fiscal year over (b) the amount of gross income (within the meaning of Section 856(c)(3) of the Code) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code (but not including the amount of any General Partner Payments); provided, however, that General Partner Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the General Partner Entity or the General Partner (if it is to be qualified as a REIT), as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) ability to qualify as a REIT. To the extent General Partner Payments may not be made in a year due to the foregoing limitations, such General Partner Payments shall carry over and 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 carry over amounts outstanding, if any, and (ii) with respect to carry over amounts for more than one Partnership Year, such payments shall be applied to the earliest Partnership Year first.General

Limitation to Preserve REIT Status. To Notwithstanding anything else in this Agreement, to the extent that the amount paid, credited, distributed or reimbursed by the Partnership to, for or with respect to any amount paid or credited to the General REIT Partner or the General Partner Entity or its officers, directors, employees or agents pursuant to Section 7.4 agents, whether as a reimbursement, fee, expense or Section 7.7 hereof indemnity (a "REIT Payment"), would constitute gross income to the General REIT Partner Entity or the General Partner (if it is to be qualified as a REIT) for purposes of Code Section 856(c)(2) or Code Section 856(c)(3) of the Code (a “General Partner Payment”) ), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner Payments in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any fiscal year 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: (i1) an amount equal to the excess, if any, of (ai) 5% four and nine- tenths percent (4.9%) of the General Partner Entity’s or the General REIT Partner’s (if it is to be qualified as a REIT) 's total gross income (but not including excluding the amount of any General Partner REIT Payments) for the fiscal year Fiscal Year that is described in subsections (A) through (H) of Code Section 856(c)(2) over (bii) the amount of gross income (within the meaning of Code 58 Section 856(c)(2) of the Code)) derived by the General REIT Partner Entity or the General Partner (if it is to be qualified as a REIT) from sources other than those described in subsections (A) through (H) of Code Section 856(c)(2) of the Code (but not including the amount of any General Partner REIT Payments); or (ii2) an amount equal to the excess, if any any, of (ai) 25% twenty-four percent (24%) of the General Partner Entity’s or the General REIT Partner’s (if it is to be qualified as a REIT) 's total gross income (but not including excluding the amount of any General Partner REIT Payments) for the fiscal year 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) of the Code)) derived by the General REIT Partner Entity or the General Partner (if it is to be qualified as a REIT) 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 General Partner REIT Payments); provided, however, that General Partner REIT Payments in excess of the amounts set forth in subparagraphs clauses (ia) and (iib) above may be made if the General Partner Entity or the General Partner (if it is to be qualified as a REIT)Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would shall not adversely affect the General Partner Entity’s or the General REIT Partner’s (if it is to be qualified as a REIT) 's ability to qualify as a REIT. To the extent General Partner that REIT Payments may not be made in a year due to Fiscal Year as a consequence of the foregoing limitationslimitations set forth in this Section 15.9, such General Partner REIT Payments shall carry over and shall be treated as arising in the following yearFiscal Year. The purpose of the limitations contained in this Section 15.9 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, providedincluding distributions, howeverreimbursements, that such amounts shall not carry over for more than five yearsfees, expenses or indemnities, receivable directly or indirectly from the Partnership, and if not paid within such five year period, shall expire; provided, further, that (i) as General Partner Payments are made, such payments this Section 15.9 shall be applied first to carry over amounts outstanding, if any, interpreted and (ii) with respect to carry over amounts for more than one Partnership Year, such payments shall be applied to the earliest Partnership Year firsteffectuate such purpose.

Limitation to Preserve REIT Status. To Notwithstanding anything else in this Agreement, with respect to any period in which the General Partner Entity or the General Partner (as the case may be) has elected to be treated as a REIT for federal income tax purposes, to the extent that any amount paid paid, credited, distributed or credited reimbursed by the Partnership to the General Partner Entity or the General Partner Entity (as the case may be) or its officers, directors, employees or agents pursuant to Section 7.4 or Section 7.7 hereof hereof, would constitute gross income to the General Partner Entity or the General Partner (if it is to be qualified as a REITthe case may be) for purposes of Section 856(c)(2) or 856(c)(3) of the Code (a “General Partner Payment”) then, notwithstanding any other provision of this Agreement, the amount of such General Partner Payments 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 fiscal year Partnership Year so that the General Partner Payments, as so reduced, for or with respect to the General Partner Entity or the General Partner (as the case may be) shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 5% four and nine-tenths percent (4.9%) of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REITthe case may be) total gross income (but not including the amount of any General Partner Payments) for the fiscal year over (b) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REITthe case may be) from sources other than those described in subsections (A) through (HI) 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% twenty-four and nine-tenths percent (24.9%) of the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REITthe case may be) total gross income (but not including the amount of any General Partner Payments) for the fiscal year over (b) the amount of gross income (within the meaning of Section 856(c)(3) of the Code) derived by the General Partner Entity or the General Partner (if it is to be qualified as a REIT) from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code (but not including the amount of any General Partner Payments); provided, however, that General Partner Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above of this Section 15.13 may be made if the General Partner Entity or the General Partner (if it is to be qualified as a REITthe case may be), as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REITthe case may be) ability to qualify as a REIT. To the extent General Partner Payments may not be made in a year Partnership Year due to the foregoing limitationslimitations set forth in this Section 15.13, such General Partner Payments shall carry over and be treated as arising in the following yearPartnership Year, if such carry over does not adversely affect the General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) ability to qualify as a REIT; 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 carry over amounts outstanding, if any, and (ii) with respect to carry over amounts for more than one (1) Partnership Year, such payments shall be applied to the earliest Partnership Year first. The purpose of the limitations contain in this Section 15.13 is to prevent the General Partner Entity or the General Partner (as the case may be) from failing to qualify as a REIT by reason of the General Partner Entity’s or the General Partner’s (as the case may be) share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly, from the Partnership, and this Section 15.13 shall be interpreted and applied to effectuate such purpose.