Common use of LIMITATION TO PRESERVE REIT Clause in Contracts

LIMITATION TO PRESERVE REIT. STATUS To the extent that any amount paid or credited to the General Partners or any of their officers, directors, trustees, employees or agents pursuant to Section 7.4 or Section 7.7 would constitute gross income to the Managing General Partner for purposes of Section 856(c)(2) or 856(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 Payment for any fiscal year shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 4.20% of the Managing General Partner's total gross income (but not including the amount of any Managing 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 Managing 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 Managing General Partner Payments); or (ii) an amount equal to the excess, if any of (a) 25% of the Managing General Partner's total gross income (but not including the amount of any Managing 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 Managing 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 Managing General Partner Payments); provided, however, that Managing General Partner Payments in excess of the amounts set forth in subparagraphs (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 would not adversely affect the Managing General Partner'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 further, that (i) as Managing 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 Status Notwithstanding anything else in this Agreement, to the extent that any amount paid paid, credited or credited reimbursed to the General Partners Managing Member or any of their its officers, directors, trustees, employees or agents pursuant to Section 7.4 agents, whether as a reimbursement, fee, expense or Section 7.7 indemnity (a "REIT Payment"), would constitute gross income to the Managing General Partner Member for purposes of Section Sections 856(c)(2) or 856(c)(3) of the Code (a "Managing General Partner Payment") Code, then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the Managing General Partner Payment Member in its discretion from among items of potential 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 Member shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) 4.20% four and seventeen one-hundredths percent (4.17%) of the Managing General PartnerMember's total gross income (but not including the amount of any Managing General Partner REIT Payments) for the fiscal year which Fiscal Year that is described in subsections (A) though 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 the Managing General Partner 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 General Partner REIT Payments); or or (ii) an amount equal to the excess, if any any, of (a) twenty-five percent (25% %) of the Managing General PartnerMember's total gross income (but not including the amount of any Managing General Partner REIT Payments) for the fiscal year which Fiscal Year that 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) Code derived by the Managing General Partner Member 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 Managing General Partner REIT Payments); provided, however, that Managing General Partner REIT Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the Managing General PartnerMember, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the Managing General PartnerMember's ability to qualify as a REIT. To the extent Managing 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 15.12, such Managing General Partner REIT Payments shall carry over and be treated as arising in the following year, Fiscal Year; provided, however, that such amounts amount shall not carry over for more than five (5) years, and if not paid within such five (5) year period, shall expire; provided provided, further, that (ia) as Managing General Partner REIT Payments are made, such payments shall be applied first to carry over amounts outstanding, if any, and (iib) with respect to carry over amounts for more than one Partnership Fiscal Year, such payments payment shall be applied to the earliest Partnership Fiscal Year first.

LIMITATION TO PRESERVE REIT. STATUS To Status 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 REIT Partner or credited to the General Partners or any of their its officers, directors, trustees, employees or agents pursuant to Section 7.4 agents, whether as a reimbursement, fee, expense or Section 7.7 indemnity (a "REIT Payment"), would constitute gross income to the Managing General REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3) of the Code (a "Managing General Partner Payment") ), then, notwithstanding any other provision of this Agreement, the amount of such Managing REIT Payments, as selected by the General Partner Payment 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: : (ia) an amount equal to the excess, if any, of (ai) 4.20% four and nine- tenths percent (4.9%) of the Managing General REIT Partner's total gross income (but not including excluding the amount of any Managing General Partner REIT Payments) for the fiscal year which Fiscal Year that is described in subsections (A) though through (H) 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 Managing General REIT Partner 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 Managing General Partner REIT Payments); or or (iib) an amount equal to the excess, if any any, of (ai) 25% twenty-four percent (24%) of the Managing General REIT Partner's total gross income (but not including excluding the amount of any Managing General Partner REIT Payments) for the fiscal year which 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 .gross income (within the meaning of Code Section 856(c)(3) of the Code)) derived by the Managing General 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 Managing General Partner REIT Payments); provided, however, that Managing General Partner Payments in excess of the amounts set forth in subparagraphs (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 would not adversely affect the Managing General Partner'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 further, that (i) as Managing 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.;