Common use of REIT Compliance Clause in Contracts

REIT Compliance. (a) The Administrative Member acknowledges that, as of the date hereof, certain of the Members or certain direct or indirect members of the Members are qualified or intend to qualify as a real estate investment trust as defined in Section 856 of the Code (a “REIT”). Accordingly, notwithstanding anything to the contrary contained herein and to the extent of the availability of Company funds (provided that the Administrative Member shall promptly provide notice of any unavailability of Company funds to the Owner Member and Investor Member), the Administrative Member shall use commercially reasonable efforts to (i) manage and operate the Company and its Subsidiaries such that the nature of its assets and gross revenues (as determined pursuant to Section 856(c)(2), (3) and (4) of the Code) would permit the Company to qualify as a REIT under Section 856 of the Code and (ii) cause the Company to avoid any “net income from prohibited transactions” under Section 857(b)(6) of the Code (in the case of the Company, determined as if the Company were a REIT but without regard to Sections 856(c)(6) and (7) of the Code). The Administrative Member shall take or refrain from taking, as the case may be, such actions as are reasonably requested by any Participating Member to protect the status of such Participating Member or the direct or indirect owner or owners of such Participating Member as a REIT, but the Administrative Member shall not be charged with making independent determinations as to the qualification or status of any Person as a REIT. In furtherance of the foregoing, the Administrative Member shall use commercially reasonable efforts to not cause the Company or any of its Subsidiaries to: (A) invest any excess funds in any investment that would not be treated as cash, cash items, or government securities for purposes of Section 856(c) of the Code; (B) enter into any lease with any Person that will result in a rental payment to the lessor that is dependent in whole or in part on the net income or profits of any lessee or sublessee; (C) enter into any lease for any Property or any portion thereof pursuant to which any rents attributable to personal property constitute more than 15% of the aggregate rents received in connection with such lease within the meaning of Section 856(d)(1)(C) of the Code; (D) enter into any lease, contract, agreement, or other arrangement as a result of which the Company would receive or accrue, or would be deemed to receive or accrue, (directly or indirectly) with respect to the Property “impermissible tenant service income” within the meaning of Section 856(d)(7) of the Code in excess of one half of one percent of all income from the Property (as if the Company were a REIT); or (E) enter into any agreement under which the Company or any Subsidiary thereof would receive, directly or indirectly, any income from the manager of a Property. Notwithstanding the foregoing, the Administrative Member shall not be deemed to have breached the foregoing provisions of this Section 15.1 (and shall have no liability or be subject to any remedy under this Agreement) with respect to any specific actions taken by the Administrative Member at the written direction of, or with the prior written approval of the Owner Member or Investor Member, as the case may be. Owner Member shall be deemed to have provided such written consent with respect to all leases, contracts, agreements, and other arrangements that are in place with respect to the Property as of the Effective Date.

REIT Compliance. (a) The Administrative Member acknowledges that, as of the date hereof, certain of the Members NorthStar Member or certain direct or indirect members of the Members NorthStar Member are qualified or intend to qualify as a real estate investment trust as defined in Section 856 of the Code (a “REIT”). Accordingly, notwithstanding anything to the contrary contained herein and to the extent of its authority hereunder and the availability of Company Venture funds (provided that that, the Administrative Member shall promptly provide notice of any unavailability of Company Venture funds to the Owner Member and Investor NorthStar Member), the Administrative Member shall use commercially reasonable efforts to (i) to manage and operate the Company Venture and its the Subsidiaries such that the nature of its assets and gross revenues (as determined pursuant to Section 856(c)(2), (3) and (4) of the Code) would permit the Company Venture to qualify as a REIT under Section 856 of the Code and Code, (ii) to manage and operate FC Ranger so that it will qualify as a REIT under Section 856 of the Code (which shall include offering the services set forth on Exhibit J with respect to any Operating Property that is operated as an independent living facility) and (iii) to cause the Company Venture and FC Ranger to each avoid any “income from foreclosure property” within the meaning of Section 857(b)(4) of the Code and any “net income from prohibited transactions” under Section 857(b)(6) of the Code (in the case of the CompanyVenture, determined as if the Company Venture were a REIT but without regard to Sections 856(c)(6) and (7) of the Code). The Administrative Member shall take or refrain from taking, as the case may be, such actions as are reasonably requested by any Participating the NorthStar Member to protect the status of such Participating the NorthStar Member or the direct or indirect owner or owners of such Participating the NorthStar Member as a REIT, but the Administrative Member shall not be charged with making independent determinations as to the qualification or status of any Person the NorthStar Member as a REIT. In furtherance of the foregoing, the Administrative Member shall use commercially reasonable efforts to not cause the Company Venture or any of its Subsidiaries to: (A) invest any excess funds in any investment that would not be treated as cash, cash items, or government securities for purposes of Section 856(c) of the Code; (B) enter into any lease with any Person person that will result in a rental payment to the lessor that is dependent in whole or in part on (x) the net income or profits of any lessee or sublessee or (y) the lessee’s or sublessee’s receipts or sales in excess of determinable dollar amounts; (C) enter into any lease for any Property or any portion thereof pursuant to which any rents attributable to personal property constitute more than 15% of the aggregate rents received in connection with such lease within the meaning of Section 856(d)(1)(C) of the Code; (D) enter into any lease, contract, agreement, or other arrangement as a result of with any person pursuant to which the Company would receive Venture provides to a tenant of a Property services other than those usually or accrue, or would be deemed to receive or accrue, (directly or indirectly) customarily rendered in connection with respect to the Property “impermissible tenant service income” rental of space for occupancy only within the meaning of Regulations Section 856(d)(7) of the Code in excess of one half of one percent of all income from the Property (as if the Company were a REIT1.512(b)-1(c)(5); or (E) enter into any agreement under which the Company Venture or any Subsidiary thereof would receive, directly or indirectly, any income from the manager of a Property. Moreover, the Administrative Member shall manage and operate the Venture and the Subsidiaries in such a manner that: (1) the Venture and the Subsidiaries will not be treated as operating or managing a lodging facility or a health care facility within the meaning of Section 856(l)(3) of the Code and (2) any health care facility (within the meaning of Section 856(l)(3) of the Code) that is leased to a Subsidiary is operated and managed by an eligible independent contractor within the meaning of Section 856(d)(9) of the Code. In addition, notwithstanding anything herein to the contrary, but subject to Section 6.07, the Venture shall distribute to the Members in each calendar year an amount equal to no less than 90% of its “real estate investment trust taxable income” (as defined in Section 857 of the Code) for such calendar year, determined as if the Venture were a REIT, and FC Ranger shall distribute for 2014 an amount equal to its cumulative earnings and profits as of the beginning of such year and shall distribute in each following calendar year an amount equal to 100% of its real estate investment trust taxable income for such year. Notwithstanding the foregoing, the Administrative Member shall not be deemed to have breached the foregoing provisions of this Section 15.1 7.12(a) (and shall have no liability or be subject to any remedy under this Agreement) with respect to any specific actions taken by the Administrative Member at the written direction of, or with the prior written approval of of, the Owner Member or Investor NorthStar Member, as including the case may be. Owner Member shall be deemed to have provided such written consent with respect to all leases, contracts, agreements, and other arrangements that are in place with respect to entering into of each Operating Lease (the Property as form of which is hereby approved by the Effective DateNorthStar Member).

REIT Compliance. (a) The Administrative Managing Member acknowledges that, as of the date hereof, certain of the Members NorthStar Member or certain direct or indirect members of the Members NorthStar Member are qualified or intend to qualify as a real estate investment trust as defined in Section 856 of the Code (a “REIT”). Accordingly, notwithstanding anything to the contrary contained herein and to the extent of its authority hereunder and the availability of Company Venture funds (provided that that, the Administrative Managing Member shall promptly provide notice of any unavailability of Company Venture funds to the Owner Member and Investor NorthStar Member), the Administrative Managing Member shall use commercially reasonable efforts to (i) to manage and operate the Company Venture and its the Subsidiaries such that the nature of its assets and gross revenues (as determined pursuant to Section 856(c)(2), (3) and (4) of the Code) would permit the Company Venture to qualify as a REIT under Section 856 of the Code Code, and (ii) to cause the Company Venture to avoid any “income from foreclosure property” within the meaning of Section 857(b)(4) of the 1160165.07-NYCSR03A - MSW Code and any “net income from prohibited transactions” under Section 857(b)(6) of the Code (in the case of the CompanyVenture, determined as if the Company Venture were a REIT but without regard to Sections 856(c)(6) and (7) of the Code). The Administrative Managing Member shall take or refrain from taking, as the case may be, such actions as are reasonably requested by any Participating the NorthStar Member to protect the status of such Participating the NorthStar Member or the direct or indirect owner or owners of such Participating the NorthStar Member as a REIT, but the Administrative Managing Member shall not be charged with making independent determinations as to the qualification or status of any Person the NorthStar Member or the direct or indirect owners thereof as a REIT. In furtherance of the foregoing, the Administrative Managing Member shall use commercially reasonable efforts to not cause the Company Venture or any of its Subsidiaries to: (A) invest any excess funds in any investment that would not be treated as cash, cash items, or government securities for purposes of Section 856(c) of the Code; (B) enter into any lease with any Person person that will result in a rental payment to the lessor that is dependent in whole or in part on (x) the net income or profits of any lessee or sublessee or (y) the lessee’s or sublessee’s receipts or sales in excess of determinable dollar amounts; (C) enter into any lease for any Property or any portion thereof pursuant to which any rents attributable to personal property constitute more than 15% of the aggregate rents received in connection with such lease within the meaning of Section 856(d)(1)(C) of the Code; (D) enter into any lease, contract, agreement, or other arrangement as a result of with any person pursuant to which the Company would receive Venture provides to a tenant of a Property services other than those usually or accrue, or would be deemed to receive or accrue, (directly or indirectly) customarily rendered in connection with respect to the Property “impermissible tenant service income” rental of space for occupancy only within the meaning of Regulations Section 856(d)(7) of the Code in excess of one half of one percent of all income from the Property (as if the Company were a REIT1.512(b)-1(c)(5); or (E) enter into any agreement under which the Company Venture or any Subsidiary thereof would receive, directly or indirectly, any income from the manager of a Property. Moreover, the Managing Member shall manage and operate the Venture and the Subsidiaries in such a manner that: (1) the Venture and the Subsidiaries will not be treated as operating or managing a lodging facility or a health care facility within the meaning of Section 856(l)(3) of the Code and (2) any health care facility (within the meaning of Section 856(l)(3) of the Code) that is leased to a Subsidiary is operated and managed by an eligible independent contractor within the meaning of Section 856(d)(9) of the Code. In addition, notwithstanding anything herein to the contrary, the Venture shall distribute to the Members in each calendar year an amount equal to no less than 90% of its “real estate investment trust taxable income” (as defined in Section 857 of the Code) for such calendar year, determined as if the Venture were a REIT. Notwithstanding the foregoing, the Administrative Managing Member shall not be deemed to have breached the foregoing provisions of this Section 15.1 7.12(a) (and shall have no liability or be subject to any remedy under this Agreement) with respect to any specific actions taken by the Administrative Managing Member at the written direction of, or with the prior written approval of of, the Owner Member or Investor NorthStar Member, as the case may be. Owner Member shall be deemed to have provided such written consent with respect to all leases, contracts, agreements, and other arrangements that are in place with respect to the Property as of the Effective Date.

REIT Compliance. (a) The Administrative Member acknowledges that, as of the date hereof, certain of the Members NorthStar Member or certain direct or indirect members owners of the Members NorthStar Member are qualified or intend to qualify as a real estate investment trust as defined in Section 856 of the Code REIT (each such entity, a “REITREIT Entity”). Accordingly, notwithstanding anything to the contrary contained herein and to the extent of the availability of Company funds (provided that the Administrative Member shall promptly provide notice of any unavailability of Company funds to the Owner Member and Investor Member), the Administrative Member shall use commercially reasonable best efforts to (i) manage and operate the Company Venture and its the Subsidiaries such that the nature of its assets and gross revenues (as determined pursuant to Section 856(c)(2), (3) and (4) of the Code) would permit the Company Venture to qualify as a REIT under and to avoid any “income from foreclosure property” within the meaning of Section 856 857(b)(4) of the Code and (ii) cause the Company to avoid any “net income from prohibited transactions” under Section 857(b)(6) of the Code (in the case of the Company, determined as if the Company Venture were a REIT but without regard to Sections 856(c)(6) and (7) of the Code). The Administrative Member shall take or refrain from taking, as the case may be, such actions as are reasonably requested by any Participating the NorthStar Member to protect the status of such Participating Member or the direct or indirect owner or owners of such Participating Member any REIT Entity as a REIT, REIT but the Administrative Member shall not be charged with making independent determinations as to the qualification or status of any Person a REIT Entity as a REIT. In furtherance of the foregoing, the Administrative Member shall use commercially reasonable efforts to not cause allow the Company Venture or any of its Subsidiaries Owner or Subsidiary to: (Ai) invest any excess funds in any investment that would not be treated as cash, cash items, or government securities for purposes of Section 856(c) of the Code; (Bii) enter into any lease with any Person person that will result in a rental payment to the lessor that is dependent in whole or in part on (A) the net income or profits of any lessee or sublessee or (B) the lessee’s or sublessee’s receipts or sales in excess of determinable dollar amounts; (Ciii) enter into any lease for any Property or any portion thereof pursuant to which any rents attributable to personal property constitute more than 15% of the aggregate rents received in connection with such lease within the meaning of Section 856(d)(1)(C) of the Code; (Div) provide, or enter into any lease, contract, agreement, or other arrangement as a result of with any person pursuant to which the Company would receive Venture or accrueany Subsidiary is required to provide, to a tenant of a Property services other than those usually or would be deemed to receive or accrue, customarily rendered in connection with the rental of space for occupancy only within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5); (directly or indirectlyv) with respect to the Property “impermissible tenant service income” engage in a prohibited transaction within the meaning of Section 856(d)(7857(b)(6) of the Code in excess of one half of one percent of all income from the Property Code; (as if the Company were a REIT); or (Evi) enter into any agreement under which the Company Venture or any Subsidiary thereof would receive, directly or indirectly, receive any income from the manager Manager or a subsidiary or direct or indirect owner of the Manager; (vii) own an interest in an entity treated as a Propertycorporation for federal income tax purposes (other than an entity treated as a “taxable REIT subsidiary” with respect to each REIT Entity); (viii) own a security (as defined for purposes of Section 856(c)(4) of the Code, taking into account Section 856(m) of the Code); or (ix) enter into any hedging transaction (as defined in Section 1221(b)(2)(A) of the Code) other than any such transaction that is clearly identified in accordance with Sections 856(c)(5)(G) and 1221(a)(7) of the Code and Regulations Section 1.1221-2 before the close of the business day on which it was acquired, originated or entered into. Notwithstanding the foregoing, the Administrative Member shall not be deemed to have breached the foregoing provisions of this Section 15.1 7.12(a) (and shall have no liability or be subject to any remedy under this Agreement) with respect to any specific actions taken by the Administrative Member at the written direction of, or with the prior written approval of of, the Owner Member or Investor NorthStar Member, as including the case may be. Owner Member shall be deemed to have provided such written consent with respect to all leases, contracts, agreements, and other arrangements that are in place with respect to entering into of each Operating Lease (the Property as form of which is hereby approved by the Effective DateNorthStar Member).

REIT Compliance. (a) The Administrative Member acknowledges that, as of the date hereof, certain of the Members or certain direct or indirect members of the Members NorthStar Member are qualified or intend to qualify as a real estate investment trust as defined in Section 856 of the Code (a “REIT”)) and such members hold their investment in the Venture through a taxable REIT subsidiary within the meaning of Section 856(l) of the Code. Accordingly, notwithstanding anything to the contrary contained herein and to the extent of the availability of Company funds (provided that the Administrative Member shall promptly provide notice of any unavailability of Company funds to the Owner Member and Investor Member), the Administrative Member shall use commercially reasonable best efforts to (i) manage and operate the Company Venture and its the Subsidiaries in such that manner that: (i) the nature Venture and the Subsidiaries will not be treated as operating or managing a lodging facility or a health care facility within the meaning of its assets and gross revenues (as determined pursuant to Section 856(c)(2), (3856(l)(3) of the Code; and (4ii) any health care facility (within the meaning of Section 856(l)(3) of the Code) would permit leased or owned by the Company to qualify as a REIT under Venture and the Subsidiaries is operated and managed by an eligible independent contractor within the meaning of Section 856 of the Code and (ii) cause the Company to avoid any “net income from prohibited transactions” under Section 857(b)(6) of the Code (in the case of the Company, determined as if the Company were a REIT but without regard to Sections 856(c)(6) and (7856(d)(9) of the Code). The Administrative Member shall take or refrain from taking, as the case may be, such actions as are reasonably requested by any Participating Member to protect the status of such Participating Member or the direct or indirect owner or owners of such Participating Member as a REIT, but the Administrative Member shall not be charged with making independent determinations as to the qualification or status of any Person as a REIT. In furtherance of the foregoing, any direct or indirect member of the Administrative Member shall use commercially reasonable efforts to not cause the Company or any of its Subsidiaries to: (A) invest any excess funds in any investment that would not be treated as cash, cash items, or government securities for purposes of Section 856(c) of the Code; (B) enter into any lease with any Person that will result in a rental payment to the lessor that is dependent in whole or in part on the net income or profits of any lessee or sublessee; (C) enter into any lease for any Property or any portion thereof pursuant to which any rents attributable to personal property constitute more than 15% of the aggregate rents received in connection with such lease within the meaning of Section 856(d)(1)(C) of the Code; (D) enter into any lease, contract, agreement, or other arrangement as a result of which the Company would receive or accrue, or would be deemed to receive or accrue, (directly or indirectly) with respect to the Property “impermissible tenant service income” within the meaning of Section 856(d)(7) of the Code in excess of one half of one percent of all income from the Property (as if the Company were a REIT); or (E) enter into any agreement under which the Company Venture or any Subsidiary thereof would receive, directly or indirectly, receive any income from the manager Manager or a subsidiary of a Propertythe Manager. Notwithstanding the foregoing, the Administrative Member shall not be deemed to have breached the foregoing provisions of this Section 15.1 7.12(a) (and shall have no liability or be subject to any remedy under this Agreement) with respect to any specific actions taken by the Administrative Member at the written direction of, or with the prior written approval of of, the Owner Member or Investor NorthStar Member, as including the case may be. Owner Member shall be deemed to have provided such written consent with respect to all leases, contracts, agreements, and other arrangements that are in place with respect to entering into of each Operating Lease (the Property as form of which is hereby approved by the Effective DateNorthStar Member).