REIT Matters. At the request of any Shareholder that intends (for itself or for any of its affiliates) to qualify and be taxed as a real estate investment trust under the Internal Revenue Code of 1986, as amended (the “Code”), the Company shall (a) join with such Shareholder (or, as applicable, such Shareholder’s affiliate) in making a “taxable REIT subsidiary” election under Section 856(l) of the Code and (b) otherwise reasonably cooperate with any request of such Shareholder (or its affiliate) pertaining to such real estate investment trust status or taxation under the Code.
REIT Matters. The Manager acknowledges that it has been advised that the Company has elected or may elect to be characterized as a REIT, and agrees that the business and affairs of the Park View Entities shall be managed with a view to minimizing (i) the amount of gross income received by the Park View Entities (directly or indirectly) that would not constitute (A) “rents from real property” as defined in Section 856 of the Code or (B) interest, dividends, gain from sales or other types of income, in each case, described in Section 856(c)(3) of the Code, (ii) the amount of any income received by the Park View Entities (directly or indirectly) from any “prohibited transactions” as defined in Section 857(b)(6)(B)(iii) of the Code (together with the income described in clause (i) of this sentence, “Bad REIT Income”) and (iii) the amount of assets held by the Park View Entities (directly or indirectly) that are not “real estate assets” or other types of assets described in Section 856(c)(4)(A) of the Code (“Bad REIT Assets”). The Manager and the Park View Entities agree that the Park View Entities shall be entitled to exercise any vote, consent, election or other right under this Agreement with a view to avoiding (or minimizing) the amount of Bad REIT Income or Bad REIT Assets of the Park View Entities or any material risk that a the Company could be disqualified as a real estate investment trust under the Code or could be subject to any additional taxes under Section 857 of the Code or Section 4981 of the Code, in each case, without regard to whether conducting the business of the Park View Entities in such manner would maximize either pre-tax or after-tax profit of the Manager or the Park View Entities. Without the prior written consent of the Park View Entities, the Manager, with respect to the Park View Entities, shall not (i) enter into any lease pursuant to which the determination of any rent to be received (directly or indirectly) by the Park View Entities depends in whole or in part on the income or profits of any person (other than amounts based upon a fixed percentage or percentages of receipts or sales); (ii) enter into any lease pursuant to which the Park View Entities shall receive (directly or indirectly) rents attributable to personal property except for a lease pursuant to which the personal property is leased in connection with the lease of real property and the rent attributable to the personal property for any taxable year does not exceed 15% of the total...
REIT Matters. The representations and covenants set forth on Exhibit D in respect of the applicable Purchaser and, to the extent applicable, its Affiliates, members, Affiliates of members or designees, shall be true and correct in all material respects as of the Closing Date as if made at and as of the Closing Date, it being understood that such Purchaser’s Affiliates, members or Affiliates of members shall be required to provide such representations and covenants only if such Person “beneficially owns” or “constructively owns” (as such terms are defined in the certificate of incorporation of the Company) Common Stock or New Common Stock in excess of the relevant ownership limit set forth in the certificate of incorporation of the Company or any stock or other equity interest owned by such Person in a tenant of the Company would be treated as constructively owned by the Company.
REIT Matters. The representations and covenants set forth on Exhibit D in respect of Purchaser and, to the extent applicable, its Affiliates, members, Affiliates of members or designees, shall be true and correct in all material respects as of the Closing Date as if made at and as of the Closing Date, it being understood that Purchaser’s Affiliates, members or Affiliates of members shall be required to provide such representations and covenants only if such Person beneficially owns Common Stock or New Common Stock in excess of the relevant ownership limit set forth in the certificate of incorporation of the Company or any stock or other equity interest owned by such Person in a tenant of the Company would be treated as constructively owned by Purchaser.
REIT Matters. Within twenty-five (25) days following the end of each calendar quarter, the Company shall provide to BH all tax information necessary for BH (or its REIT affiliates) to comply with the REIT requirements under Sections 856 and 857 of the Code. Notwithstanding anything to the contrary in this Agreement, neither the Company nor any Member (acting on the Company’s behalf) shall take any action which would cause BH (or its REIT affiliates) to (a) fail to qualify as a “real estate investment trust” (as defined under Sections 856 & 857 of the Code) or (b) incur any additional taxes under Section 857 or Section 4981 of the Code (or any successor provisions). In particular, the Company shall conduct its business affairs in a manner so as to avoid incurring income that would not qualify under Sections 856(c)(2) and 856(c)(3) of the Code and will not acquire assets that are not described in Section 856(c)(4) of the Code unless approved by BH. The Members shall periodically consult with each other (or their designee) to ensure that any prospective transaction undertaken by the Company, or a Member acting on behalf of the Company, shall not cause BH (or its REIT affiliates) to fail to qualify as a REIT. If the Members disagree as to whether any transaction will cause BH (or its REIT affiliates) to fail to qualify as a REIT (as defined under Sections 856 and 857 of the Code) or incur any additional taxes under Section 857 or Section 4981 of the Code (or any successor provisions), the reasonable determination of BH shall be final.
REIT Matters. (i) The Company acknowledges that an Affiliate of PC Member intends to qualify at all times as a REIT, and that its ability to so qualify will depend in part upon the nature of the assets and operations of the Company and any Subsidiary. Accordingly, for so long as PC Member holds an interest in the Company, the Company at all times shall exercise diligent and commercially reasonable efforts to conduct the business of the Company and any Subsidiary in a manner that will enable PC Member and its Affiliates to satisfy all the requirements for REIT status under Sections 856 through 860 of the Code to the extent possible. The parties acknowledge that the Company shall rely on guidance from Xxxxxxxx & Xxxxxxxx LLP, acting as tax advisor to TCG Member and the Company. Xxxxxxxx & Xxxxxxxx LLP shall cooperate with the tax advisors of PC Member and its Affiliates in fulfilling its duties pursuant to this Section 9.1(c)(i). Without limiting the generality of the foregoing, the Company shall cooperate with PC Member (e.g., by jointly structuring all forms of contracts used to sell timber and sharing advice provided by the Company’s tax advisors) to ensure that the Company’s operations are conducted in accordance with the following limitations:
(1) Neither the Company nor any Subsidiary shall own more than ten percent (10%) of the total voting power or more than ten percent (10%) of the total value of the outstanding securities of any one issuer (as determined for purposes of Section 856(c)(4)(B) of the Code);
(2) At no time may the aggregate value of all securities owned by the Company and all Subsidiaries in entities that have elected to be treated as “taxable REIT subsidiaries” exceed the percentage of the total value of the assets of the Company’s and all Subsidiaries set forth in Section 856(c)(4)(B)(ii);
(3) Neither the Company nor any Subsidiary, nor any Member (solely in its capacity as a Member of the Company) shall take any action (or fail to take any action permitted under this Agreement) that would otherwise cause the Company’s gross income to consist of more than five percent (5%) of income not described in Section 856(c)(2) of the Code or more than twenty-five percent (25%) of income not described in Section 856(c)(3) of the Code, or cause more than twenty-five percent (25%) of the Company’s assets to consist of assets other than cash and “real estate assets” within the meaning of Section 856(c)(5)(B) of the Code; and
(4) The Company and each Subsidiary ...
REIT Matters. The Company shall take all actions, and refrain from taking all actions, as are necessary to ensure that the Company (i) will qualify for taxation as a REIT for U.S. federal income tax purposes for its current taxable year and any other taxable year that includes the Closing Date, and (ii) will not become liable for U.S. federal income Tax under Section 857(b) or 4981 of the Code. During the Interim Period, the Company shall accommodate all reasonable requests of Parent with respect to maintenance of the Company’s REIT status, including for the Company’s 2015 taxable year and, if applicable, 2016 taxable year.
REIT Matters. The parties agree that for all purposes of the Agreement and this Confirmation, the terms “Beneficial Ownership” and “Constructive Ownership” in Article Seven of Issuer’s corporate charter, as in effect under the General Corporation Law of the State of Maryland on the date hereof (the “Charter”) shall not include shares held by Dealer or its affiliates to the extent such shares are held in a purely fiduciary capacity and such shares shall not be considered Beneficially Owned or Constructively Owned by Dealer or its affiliates under the Charter.
REIT Matters. (a) The Company shall make a timely election to qualify as a REIT in connection with the filing of its Tax Return for its taxable year ending December 31, 2010.
(b) The Company shall make a distribution to its stockholders as required by Section 857(a)(2)(B) of the Code by December 31, 2010.
REIT Matters. Each of the Brooklyn Parties will take all necessary actions to enable the REIT to merge or liquidate into Brooklyn Federal Savings at Closing. 42
