Common use of Limitation to Preserve REIT Status Clause in Contracts

Limitation to Preserve REIT Status. If Parent attempts to qualify as a REIT, to the extent that any amount paid or credited to Parent or any of its officers, trustees, employees or agents pursuant to Section 7.4 or Section 7.7 would constitute gross income to Parent for purposes of Section 856(c)(2) or 856(c)(3) of the Code (a “Parent Payment”) then, notwithstanding any other provision of this Agreement, the amount of such Parent Payment for any Fiscal Year shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 4% of Parent’s total gross income (within the meaning of Section 856(c)(3) of the Code but not including the amount of any Parent Payments) for the 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 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 Parent Payments); or (ii) an amount equal to the excess, if any, of (a) 24% of Parent’s total gross income (but not including the amount of any 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 Parent Payments) derived by Parent from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code; provided, however, that Parent Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if Parent, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect Parent’s ability to qualify as a REIT. To the extent Parent Payments may not be made in a given Fiscal Year due to the foregoing limitations, such Parent 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 Fiscal Years, and if not paid within such five Fiscal Year period, shall expire; and provided further that (i) as Parent 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 Fiscal Year, such payments shall be applied to the earliest Fiscal Year first.

Limitation to Preserve REIT Status. If Parent attempts to qualify as a REIT, to To the extent that any amount paid or credited to Parent the General Partner or any of its officers, trusteesdirectors, employees or agents or the Company (or any Limited Partner Subsidiary) pursuant to Section 7.4 or Section 7.7 hereof would constitute gross income to Parent the Company for purposes of Section 856(c)(2) or 856(c)(3) of the Code (a “Parent REIT Payment”) then, notwithstanding any other provision of this Agreement, the amount of such Parent Payment REIT Payments for any Fiscal Year fiscal year shall not exceed the lesser of: (ia) an amount equal to the excess, if any, of (ai) 4% five percent (5%) of Parentthe Company’s total gross income (within the meaning of Section 856(c)(3) of the Code but not including the amount of any Parent REIT Payments) for the Fiscal Year which is described in subsections (A) though (I) of Section 856(c)(2) of the Code fiscal year over (bii) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by Parent the Company 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 Parent REIT Payments); or (iib) an amount equal to the excess, if any, any of (ai) 24% twenty-five percent (25%) of Parentthe Company’s total gross income (but not including the amount of any Partner REIT Payments) for the Fiscal Year which is described in subsections (A) through (I) of Section 856(c)(3) of the Code fiscal year over (bii) the amount of gross income (within the meaning of Section 856(c)(3) of the Code but not including the amount of any Parent PaymentsCode) derived by Parent the Company from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the CodeCode (but not including the amount of any REIT Payments); provided, however, that Parent REIT Payments in excess of the amounts set forth in subparagraphs (ia) and (iib) above may be made if Parentthe Company, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect Parentthe Company’s ability to qualify as a REIT. To the extent Parent REIT Payments may not be made in a given Fiscal Year year due to the foregoing limitations, such Parent REIT 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 Fiscal Years, and if not paid within such five Fiscal Year period, shall expire; and provided further that (i) as Parent REIT 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 Fiscal Partnership Year, such payments shall be applied to the earliest Fiscal Partnership Year first.

Limitation to Preserve REIT Status. If Parent attempts to qualify as a REIT, to To the extent that any amount paid or credited to the Parent or any of its officers, trusteesdirectors, employees or agents pursuant to Section Sections 7.4 or Section 7.7 would constitute gross income to the Parent for purposes of Section Sections 856(c)(2) or 856(c)(3) of the Code (a “Parent Payment”) then, notwithstanding any other provision of this Agreement, the amount of such Parent Payment for any Fiscal Year shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 4% of the Parent’s total gross income (within the meaning of Section 856(c)(3) of the Code but not including the amount of any Parent Payments) for the Fiscal Year which is described in subsections (A) though (IH) 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 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 Parent Payments); or (ii) an amount equal to the excess, if any, any of (a) 24% of the Parent’s total gross income (but not including the amount of any Partner Parent 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 Parent Payments) derived by the Parent from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code; provided, however, that Parent Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the Parent, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the Parent’s ability to qualify as a REIT. To the extent Parent Payments may not be made in a given Fiscal Year due to the foregoing limitations, such Parent 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 (5) Fiscal Years, and if not paid within such five (5) Fiscal Year period, shall expire; and provided further that (i) as Parent 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 Fiscal Year, such payments shall be applied to the earliest Fiscal Year first.

Limitation to Preserve REIT Status. If Parent attempts to qualify as a REIT, to To the extent that any amount paid or credited to the Parent or the General Partner or any of its their officers, trusteesdirectors, employees or agents pursuant to Section 7.4 or Section 7.7 would constitute gross income to the Parent for purposes of Section 856(c)(2) or 856(c)(3) of the Code Code (a “Parent “ General Partner Payment”) then, notwithstanding any other provision of this Agreement, the amount of such Parent General Partner Payment for any Fiscal Year shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 4% of the Parent’s total gross income (within the meaning of Section 856(c)(3) of the Code but not including the amount of any Parent General Partner Payments) for the Fiscal Year which is described in subsections (A) though (IH) 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 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 Parent General Partner Payments); or (ii) an amount equal to the excess, if any, 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 Parent General Partner Payments) derived by the Parent from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code; provided, however, that Parent General Partner Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the Parent, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the Parent’s ability to qualify as a REIT. To the extent Parent General Partner Payments may not be made in a given Fiscal Year due to the foregoing limitations, such Parent 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 (5) Fiscal Years, and if not paid within such five (5) Fiscal Year period, shall expire; and provided further that (i) as Parent 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 Fiscal Year, such payments shall be applied to the earliest Fiscal Year first.

Limitation to Preserve REIT Status. If Parent attempts to qualify as a REIT, to To the extent that any amount paid or credited to the Parent or the General Partner or any of its their officers, trusteesdirectors, employees or agents pursuant to Section Sections 7.4 or Section 7.7 would constitute gross income to the Parent for purposes of Section Sections 856(c)(2) or 856(c)(3) of the Code (a “Parent General Partner Payment”) then, notwithstanding any other provision of this Agreement, the amount of such Parent General Partner Payment for any Fiscal Year shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 4% of the Parent’s total gross income (within the meaning of Section 856(c)(3) of the Code but not including the amount of any Parent General Partner Payments) for the Fiscal Year which is described in subsections (A) though (IH) 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 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 Parent General Partner Payments); or or (ii) an amount equal to the excess, if any, 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 Parent General Partner Payments) derived by the Parent from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code; provided, however, that Parent General Partner Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the Parent, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the Parent’s ability to qualify as a REIT. To the extent Parent General Partner Payments may not be made in a given Fiscal Year due to the foregoing limitations, such Parent 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 (5) Fiscal Years, and if not paid within such five (5) Fiscal Year period, shall expire; and provided further that (i) as Parent 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 Fiscal Year, such payments shall be applied to the earliest Fiscal Year first.