REIT Protections. (a) DevCo acknowledges that certain SpinCo Affiliates (each, a “SpinCo REIT”) have elected to be classified as real estate investment trusts (“REITs”) and, as a result, must comply with certain requirements, including, without limitation, the provisions of Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “REIT Requirements”). In the event that counsel or independent accountants for any SpinCo REIT determine that there exists a material risk that any amounts due to SpinCo or any SpinCo Affiliate pursuant to this Agreement would be treated as gross income not described in Section 856(c)(2) or 856(c)(3) of the Code (“Nonqualifying Income”), the amount paid to SpinCo or any SpinCo Affiliate under this Agreement in any tax year may not exceed the maximum amount that can be paid to SpinCo or the applicable SpinCo Affiliate in such year without causing any SpinCo REIT to fail to meet the REIT Requirements for such year, determined as if the payment of such amount were Nonqualifying Income. If the amount payable for any tax year under the preceding sentence is less than the amount that DevCo or its Affiliates would otherwise be obligated to pay to SpinCo pursuant to the Agreement (the “SpinCo Excess Amount”), then DevCo or the applicable DevCo Affiliate shall place the SpinCo Excess Amount in escrow and shall not release any portion thereof to SpinCo or the applicable SpinCo Affiliate, and neither SpinCo nor such Affiliate shall be entitled to any such amount, unless and until SpinCo or its Affiliate delivers to DevCo or its Affiliate at the sole option of the applicable SpinCo REIT, (A) notice that it has received advice of such SpinCo REIT’s tax counsel to the effect that such amount, if and to the extent paid, would not constitute Nonqualifying Income, (B) a letter from the independent accountants of such SpinCo REIT indicating the maximum amount that can be paid at that time to SpinCo or the SpinCo Affiliate without causing such SpinCo REIT to fail to meet the REIT Requirements for any relevant taxable year, in which case such maximum amount shall be paid to SpinCo or the applicable SpinCo Affiliate, or (C) a private letter ruling issued by the Internal Revenue Service to the applicable SpinCo REIT indicating that the receipt of any SpinCo Excess Amount hereunder would not cause such SpinCo REIT to fail to satisfy the REIT Requirements. The obligation to pay any amount which is not paid as a result of this provision s...
REIT Protections. Each Master Lease shall contain customary REIT protections.
REIT Protections. In the event of any conflict between this Section 5.1(f) and any other provision of this Agreement (other than Section 5.8), this Section 5.1(f) shall control.
REIT Protections. 5.8.1 Notwithstanding anything to the contrary in this Agreement, for so long as any Member is a REIT Member, unless the REIT Member shall otherwise consent in writing (which consent may be withheld in such REIT Member’s sole and absolute discretion), the Company shall not (and shall not permit any Subsidiary of the Company to) take any action, or refrain from taking any action that, in the judgment of such REIT Member, in its sole and absolute discretion, could adversely affect the ability such REIT Member (or any Affiliate thereof) to continue to qualify as a REIT under the Code.
5.8.2 So long as SLR is a Member of the Company, SLR covenants and agrees that SLR shall not be the Manager (or treated as the Manager for U.S. federal income tax purposes), become a Subsidiary of Manager or merge or consolidate with Manager.
REIT Protections. For so long as the Ryman Member or any of its Affiliates holds any Units (i) in no event shall (x) the Ryman Member be required to Transfer any Units nor (y) the Company or any of its Affiliates take any action (including the filing of any tax election, any recapitalization or reclassification of any Units or the payment of any distribution), in either case, without the Ryman Member’s prior written consent to the extent such Transfer or action, as applicable, could reasonably be expected to cause, in Ryman Parent’s good faith determination based on the advice of counsel, Ryman Parent to fail to satisfy any requirement for qualification and taxation as a REIT or otherwise subject the Ryman Parent to any Tax liability pursuant to Section 857 of the Code or any similar provision of law, (ii) neither the Company nor any of its Subsidiaries shall directly or indirectly operate or manage a lodging facility or health care facility or provide any person with rights to a brand name under which any lodging facility or health care facility is operated, in each case, within the meaning of Section 856(l) of the Code, and (iii) the Company shall reasonably cooperate with the Ryman Member with respect to (x) the making of any “taxable REIT subsidiary” election with respect to the Company or any Subsidiary pursuant to Section 856(l)(1)(B) of the Code and (y) the provision of any information in the Company’s or any of its Subsidiary’s possession that is reasonably necessary for or relevant to the Ryman Parent’s status as a REIT. For the avoidance of doubt, nothing in this Section 13.18 shall limit the Ryman Member’s or Ryman Parent’s obligations pursuant to Section 13.1, Section 13.3, Section 13.5, Section 13.7, Section 13.8, Section 13.11, Section 13.12, Section 13.13 and Section 13.14; provided that, in the case of Section 13.2 and Section 13.10, the Ryman Member shall only be permitted to avail itself of the provisions of this Section 13.18 to the extent that the Ryman Member cooperates with the Investor Member in good faith to provide the Investor Member the maximum benefit of such provisions as reasonably practicable under the circumstances.
REIT Protections. (a) Notwithstanding anything else to the contrary in this Agreement, unless Lender shall otherwise consent in writing (which consent may be withheld in Lender's sole and absolute discretion), Borrower shall not permit any of the Property Owners to:
(i) acquire any stock, loan or other debt or equity securities of or make any advance to another issuer (including an Affiliate of Borrower or any Subsidiary);
(ii) enter into any lease which is not approved by Lender or provide any services to any lessee;
(iii) enter into any lease which provides for the rental of personal property, except a lease which provide for the rental of both personal property and real property and in which the personal property accounts for less than 10% of the total rent (as determined pursuant to Section 856(d)(1) of the Code);
(iv) derive income in any calendar year other than from rent or interest on any bank time deposits, in either case which is not based on net income or profits of the lessee or bank, as the case may be, which would cause the aggregate amount of such income earned by all Property Owners to exceed $100,000 during such calendar year;
(v) own any assets other than the Facilities, cash, bank time deposits and receivables such as rent, which arise in the ordinary course of its rental business; or
(vi) sell, dispose, convey or otherwise transfer any of its properties (or interests therein) in a manner that fails to satisfy the requirements of the prohibited transaction safe-harbor set forth in Section 857(b)(6)(C) of the Code with respect to Lender and as if Lender became the owner of such properties at the time the Loan was made.
(b) Borrower shall, promptly upon Lender's request, make available to Lender all data and information in the possession of Borrower or any Subsidiary relating to Borrower, any Subsidiary or any of their respective assets, which is determined by Lender to be necessary or helpful to monitor its compliance with the REIT income and asset tests and other legal requirements relating to the status of Lender as a REIT.
(c) Notwithstanding anything to the contrary herein, while Borrower shall not be required independently to determine whether any transaction or arrangement would adversely affect Lender's ability to qualify as a REIT or would result in a Property Owner holding any assets other than "real estate assets" as defined in Section 856(c)(5)(B) of the Code ("Non-REIT Assets") or generating income which would not qualify under Sections 856(c)(...
REIT Protections. 6.11.1 Notwithstanding anything to the contrary in this Agreement, unless each REIT Member shall otherwise consent in writing (which consent may be withheld in such REIT Member’s sole and absolute discretion), the Company shall not (and shall not permit any Subsidiary of the Company to):
(a) own or acquire any stock, loan or other debt or equity securities of or make any advances to another issuer (including an Affiliate of the Company or any Member); provided, however, that the Company may own 100% of the membership interests in Subsidiaries that are disregarded for U.S. federal income tax purposes; provided, further, that any such Subsidiaries shall also be subject to the limitations of this Section 6.11; provided, further, that the Company may own no more than half of the capital interests and profits interests in the Joint Ventures.
(b) enter into any lease which provides for rent based on any Person’s net income or profits;
(c) directly or indirectly (i) operate or manage a “lodging facility” or a “health care facility” (as such terms are defined in Code Sections 856(d)(9)(D)(ii) and 856(e)(6)(D)(ii)), or (ii) provide to any Person (under a franchise, license, or otherwise) rights to any brand name under which any lodging facility or health care facility is operated (unless such rights are held by the Company or any Subsidiary as a franchisee, licensee, or in a similar capacity and such lodging facility or health care facility is either owned by the Company or any Subsidiary or is leased to the Company or any Subsidiary from a REIT);
(d) make an election or take any action that would cause the Company to fail to be treated as an entity that is classified as a partnership (other than a “publicly traded partnership” as defined in Code Section 7704) for United States federal income tax purposes; or
(e) amend or modify the Management Agreement or the definition of “Eligible Independent Contractor” set forth in the Management Agreement.
6.11.2 The Company shall, promptly upon any REIT Member’s request, make available to such REIT Member all data and information in the possession of the Doc#: US1:15482657v3 Company or any of its Company Assets that is determined by such REIT Member to be necessary or helpful to monitor such REIT Member’s (or its Affiliate’s) compliance with the requirements for qualification as a REIT or taxable REIT subsidiary, as applicable, under the Code.
6.11.3 Notwithstanding the foregoing or any other provision in this Agreement, so ...
REIT Protections. Except as otherwise provided by this Agreement, (a) without the prior consent of each Member that is an Affiliate of either Colonial REIT or G&I V REIT, Manager shall not cause or permit the Company, or any subsidiary of the Company, to
(i) acquire any stock or securities of another issuer, provided, however, that the Company, or a subsidiary of the Company, may acquire one hundred percent (100%) of the interests in Sellco and one or more subsidiary limited liability companies or limited partnerships, so long as SellCo has made the Taxable REIT Subsidiary election required in Section 5.12(f) below and any such limited liability companies or limited partnerships are disregarded as entities for income tax purposes, and the respective limited liability company agreements or limited partnership agreements contain the provisions specified in this Section 5.12 of this Agreement, and provided further, that the Company, or a subsidiary of the Company, may acquire assets described in Code 856(c)(4) (A);
(ii) enter into any lease or permitting any sublease which provides for rent based upon any Person’s income or profits (as determined for purposes of Section 856(d)(2)(A) of the Code), excluding for this purpose a lease or sublease that provides for rent based in whole or in part on a fixed percentage or percentages of gross receipts or gross sales of any person;
(iii) enter into any lease which provides for the rental to others of personal property, except a lease which provides for the rental of both personal property and real property and in which the personal property accounts for less than fifteen percent (15%) of the total rent attributable to the property subject to such lease (as determined pursuant to Section 856(d)(1) of the Code);
(iv) engage in any sale or exchange of property other than a Sale Property by Sellco or its subsidiaries (whether or not such exchange qualifies for the nonrecognition of gain under Section 1031 of the Code), other than through a subsidiary of the Company that is treated as a corporation for federal income tax purposes and that is treated as a Taxable REIT Subsidiary (as defined in section 856(l) of the Code) of Colonial REIT and a DRA Person, on or after the closing date and through December 31, 2005;
(v) acquire or hold debt unless (a) the amount of interest income received or accrued by the Company under such loan does not, directly or indirectly, depend in whole or in part on the income or profits of any person, and (b) the ...
REIT Protections. HCPI shall be satisfied in its reasonable discretion that HCPI's ownership of the HCPI Membership Interest in each of the Subject Companies would not adversely affect HCPI's ability to qualify as a real estate investment trust ("REIT") qualifying under the Internal Revenue Code of 1986, as amended (the "Code") Section 856, et seq.
REIT Protections. Tenant shall not enter into, or permit any person having an interest in the possession, use, occupancy, utilization or enjoyment of any part of the Premises to enter into, any lease, sublease, assignment, license, concession, or other agreement for the possession, use, occupancy, utilization or enjoyment of the Premises (i) which provides for rental or other compensation based on the income or profits derived by any person or on any other formula such that any portion of the sublease rental or other consideration payable thereunder would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code or any similar or successor provision thereto or (ii) under which fifteen percent (15%) or more of the total rent or other compensation received by Tenant is attributable to personal property and any such purported lease, sublease, assignment, license, concession or other agreement shall be absolutely void and ineffectual as a conveyance of any right or interest in the possession, use, occupancy, utilization or enjoyment of such part of the Premises. Landlord acknowledges that, as of the Effective Date, the Restaurant Subleases comply with the requirements of this Section 19(h).
