Common use of Limitation to Preserve REIT Status Clause in Contracts

Limitation to Preserve REIT Status. To the extent that the amount paid or credited to the General Partner or its officers, directors, employees or agents pursuant to Section 7.4 or Section 7.7 would constitute gross income to TFOC Inc. for purposes of Sections 856(c)(2) or 856(c)(3) of the Code (a “GP Payment”) then, notwithstanding any other provision of this Agreement, the amount of such GP Payments for any Partnership Year shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 4.17% of TFOC Inc.’s total gross income (but not including the amount of any GP Payments) for the Partnership Year which is described in subsections (A) through (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 TFOC Inc. 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 GP Payments); or (ii) an amount equal to the excess, if any, of (a) 25% of TFOC Inc.’s total gross income (but not including the amount of any GP Payments) for the Partnership 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 TFOC Inc. 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 GP Payments); provided, however, that GP Payments in excess of the amounts set forth in 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 would not adversely affect TFOC Inc.’s ability to qualify as a REIT. To the extent GP Payments may not be made in a year due to the foregoing limitations, such GP Payments shall carry over and be treated as arising in the following year.

Limitation to Preserve REIT Status. To the extent that the any amount paid or credited to the General Partner or any of its officers, directors, trustees, employees or agents pursuant to Section 7.4 or Section 7.7 would constitute gross income to TFOC Inc. the General Partner for purposes of Sections Section 856(c)(2) or 856(c)(3) of the Code (a “GP "General Partner Payment”'') then, notwithstanding any other provision of this Agreement, the amount of such GP Payments General Partner Payment for any Partnership Year fiscal year shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 4.174.20% of TFOC Inc.’s the General Partner's total gross income (but not including the amount of any GP General Partner Payments) for the Partnership Year fiscal year which is described in subsections (A) through 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 TFOC Inc. the General Partner 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 GP General Partner Payments); or (ii) an amount equal to the excess, if any, any of (a) 25% of TFOC Inc.’s the General Partner's total gross income (but not including the amount of any GP General Partner Payments) for the Partnership 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 Code) derived by TFOC Inc. the General Partner 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 GP General Partner Payments); provided, however, that GP General Partner Payments in excess of the amounts set forth in 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 would not adversely affect TFOC Inc.’s the General Partner's ability to qualify as a REIT. To the extent GP General Partner Payments may not be made in a year due to the foregoing limitations, such GP 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.