REIT Provisions. (a) Notwithstanding anything herein to the contrary, the Members hereby acknowledge the status of M-C Corp. as a real estate investment trust (a “REIT”). The Members further agree that the Company (and any subsidiaries) and the Project shall be managed in a manner so that: (a) the Company’s gross income meets the tests provided in Section 856(c)(2) and (3) of the Code as if the Company were a REIT; (b) the Company’s assets meet the tests provided in Section 856(c)(4) of the Code as if the Company were a REIT; and (c) the Company minimizes federal, state and local income and excise taxes that may be incurred by M-C Corp or any of its affiliates, including taxes under Code Sections 857(b), 860(c) or 4981 (collectively and together with other REIT provisions of the Code or Regulations, the “REIT Requirements”) provided that such minimization does not unreasonably increase taxes or costs for the other Members. The Members hereby acknowledge, agree and accept that, pursuant to this Section 9.5(a), the Company (or any of its subsidiaries) may be precluded from taking, or may be required to take, an action which it would not have otherwise taken, even though the taking or not taking of such action might otherwise be advantageous to the Company (or any of its subsidiaries) and/or to one or more of the Members (or one or more of their subsidiaries or affiliates).
(b) Notwithstanding any other provision of this Agreement to the contrary, neither the Manager nor any Member will require the Company to take any material action which may, in the reasonable opinion of MCG’s tax advisors or legal counsel, result in the loss of M-C Corp.’s status as a REIT. Furthermore, the Manager shall take reasonable steps to structure the Company’s (or any subsidiary’s) transactions to eliminate any prohibited transactions tax or other taxes that may be applicable to MCG and/or M-C Corp to the extent such actions do not impose an unreasonable cost or tax on other Members.
(c) If MCG’s counsel reasonably determines that a taxable REIT subsidiary (as described in Section 856(l) of the Code) (a “TRS”) should be established to hold MCG’s Membership Interest, or to provide services at the Project, then M-C Corp., MCG or the Members (or any of their affiliates), as applicable, may form, or cause to be formed, such TRS only if it (i) provides at least five (5) days prior written notice thereof to the Members and (ii) prepares forms for election under Section 856(l)(l)(B) of the Code (in accor...
REIT Provisions. Tenant and Landlord intend that all amounts payable by Tenant to Landlord shall qualify as “rents from real property,” and will otherwise not constitute “unrelated business taxable income” or “impermissible tenant services income,” all within the meaning of Section 856(d) of the Internal Revenue Code of 1986, as amended (the “Code”) and the U.S. Department of Treasury Regulations promulgated thereunder (the “Regulations”). In the event that Landlord determines that there is any risk that any amount payable under this Lease may not qualify as “rents from real property” or will otherwise constitute impermissible tenant services income within the meaning of Section 856(d) of the Code and the Regulations, Tenant agrees to (a) cooperate with Landlord, at no material expense to Tenant, by entering into such amendment or amendments as Landlord deems necessary to qualify all amounts payable under this Lease as “rents from real property,” and (b) permit (and, upon request, to acknowledge in writing) an assignment of the obligation to provide certain services under the Lease, and, upon request, to enter into direct agreements with the parties furnishing such services (which shall include, but not be limited to, a taxable REIT subsidiary of Landlord). Notwithstanding the foregoing, Tenant shall not be required to take any action pursuant to the preceding sentence (including acknowledging in writing an assignment of services pursuant thereto) if such action would result in (i) Tenant incurring more than de minimis additional liability under this Lease, or (ii) more than a de minimis negative change in the quality or level of Building operations or services rendered to Tenant under this Lease. For the avoidance of doubt: (A) if Tenant does not acknowledge in writing an assignment as described in clause (b) above (it being agreed that Tenant shall not unreasonably withhold, condition or delay such acknowledgment so long as the criteria in clauses (i) and (ii) hereinabove are satisfied), then Landlord shall not be released from liability under this Lease with respect to the services so assigned; and (B) nothing in this Section shall limit or otherwise affect Landlord’s ability to assign its entire interest in this Lease to any party as part of a conveyance of Landlord’s ownership interest in the Building.
REIT Provisions. (a) The Company and the Members acknowledge and agree that Xxxxxx REIT, which owns CVOP and therefore an indirect interest in the Company, is treated as a “real estate investment trust,” within the meaning of Code Section 856, and is therefore subject to the requirements set forth in Code Sections 856 through 859.
(b) Notwithstanding anything else in this Agreement, without the prior written approval of CVOP, the Company shall not take any action that would result in any of the following consequences to the Company (treating the Company as if it were a REIT, but only with respect to assets and operational matters as opposed to ownership), without the prior written consent of CVOP:
(i) to recognize any income that would cause the Company to fail to satisfy either the “75 percent gross income test” set forth in Code Section 856(c)(3) or the “95 percent gross income test” set forth in Code Section 856 (c)(2);
(ii) to hold any property that would cause the Company to fail to satisfy on the last day of each calendar quarter (determined taking into account the cure period rules set forth in Code Section 856(c)(4)) any of (A) the “75 percent asset test” set forth in Code Section 856(c)(4)(A), (B) the “25 percent asset test” set forth in Code Section 856(c)(4)(B)(i), (C) the “25 percent value limitation” set forth in Code Section 856(c)(4)(B)(ii), (D) the “5 percent value limitation” set forth in Code Section 856(c)(4)(B)(iii)(I), or (E) the “10 percent vote and value limitations” set forth in Code Sections 856(c)(4)(B)(iii)(II) and (III); and
(iii) to engage in a transaction that reasonably could be expected to be treated as a “prohibited transaction” within the meaning of Code Section 857(b)(6)(B)(iii) unless the transaction qualifies for the safe harbor with respect to a “prohibited transaction” set forth in Code Section 857(b)(6)(C) (taking into account any other “safe harbor” transactions engaged in by the Xxxxxx REIT or any Affiliate (including any joint venture, partnership or limited liability company in which the Xxxxxx REIT or an Affiliate invests), which information CVOP will provide to the Company upon written request).
REIT Provisions. Tenant understands that, in order for an indirect owner of Landlord to qualify as a REIT, the following requirements (the “REIT Requirements”) must be satisfied:
REIT Provisions. If Landlord or any assignee of the beneficial rights of Landlord is ever a Real Estate Investment Trust (a “REIT”), then Tenant acknowledges and confirms that the obligations of Landlord hereunder are not and will not be binding on a trustee of the REIT, any registered or beneficial holder of one or more units of a REIT (“Unitholder”) or any annuitant under a plan of which such a Unitholder acts as trustee or carrier, or any officers, employees or agents of the REIT and that resort shall not be had to, nor shall recourse or satisfaction be sought from, any of the foregoing or the private property of any of the foregoing but recourse shall be had against the assets of the REIT only. Any obligation of the REIT set out in this Agreement or the Lease shall to the extent necessary to give effect to such obligation be deemed to constitute, subject to the provisions of the previous sentence, an obligation of the trustees of the REIT in their capacity as trustees of the REIT only. If the beneficial owner of the Shopping Centre is a Person other than the registered owner of the Shopping Centre, the Tenant’s recourse to such beneficial owner hereunder shall be limited only to such beneficial owner’s right, title and interest in and to the Shopping Centre and all rights appurtenant thereto and all proceeds resulting therefrom.
REIT Provisions. Not less than 10 days prior to the FBR Asset Effective Time, FBR Asset shall acquire 120 FBR Group Class A Common Shares. FBR Asset shall make an election as provided in Section 856(l)(1) of the Code, together with FBR Group, to treat FBR Group and each first-tier subsidiary of FBR Group in existence on the effective date of such election as a "taxable REIT subsidiary" effective as of the first business day preceding the FBR Asset Effective Time (provided, however, that if this Agreement is terminated pursuant to Section 6.1 hereof (or otherwise), FBR Asset shall promptly join FBR Group and each such subsidiary in a revocation of each such election). FBR Asset shall (i) not elect to treat Newco as a "taxable REIT subsidiary" and (ii) maintain ownership of 100% of the common stock and any other equity securities of Newco at all times prior to the FBR Asset Effective Time. Newco shall (i) elect, in the time and manner provided by Section 856(c)(1) of the Code and the Treasury Regulations thereunder, to be a "real estate investment trust" for the taxable year ending on December 31st of the calendar year in which the Closing Date falls, (ii) timely make, and cause each first-tier subsidiary of FBR Group in existence immediately prior to the Effective Time to join in timely making, a joint election under Section 856(l)(1) on Form 8875 (or a successor form) to treat each first-tier subsidiary of FBR Group in existence immediately prior to the Effective Time as a "taxable REIT subsidiary" effective as of the FBR Asset Effective Time and (iii) not make a deemed sale election under Treasury Regulation Section 1.337(d)-7T(c) with respect to the assets of FBR Group.
REIT Provisions. Section 20.1 The Company and the Series generally intend to carry out the investment program by making a portion of its investments through one or more REITs (each, a “REIT Subsidiary”).
(a) To the extent permitted by law, but notwithstanding anything in this Agreement, the provisions of Exhibit B shall be applied to the Company and the Series in the same manner as to any REIT Subsidiary mutatis mutandis. Specifically, but without limiting the application of the provisions of Exhibit B, in the event that (i) any Share is Transferred or any direct or indirect ownership interest in any Shareholder is Transferred and (ii) as a result of such Transfer, the interests in any REIT Subsidiary that are held, directly or indirectly, by the Company and/or Series would otherwise be subject to Section 2.1.1 of Exhibit B, then provisions similar to those set forth in Exhibit B shall apply to Shares to which such purported Transfer relates. The Shareholders agree that the Shares that were the subject of the purported Transfer shall be automatically transferred to a trust for the benefit of a Charitable Beneficiary in such amount as shall be sufficient to ensure that no equity interests of a REIT Subsidiary shall be automatically transferred to a Charitable Trust (or similar) under the applicable REIT Subsidiary Agreement. In the event of a transfer of Shares to a Charitable Trust (or similar), provisions comparable to Sections 2.1.1(b) and 2.2 of Exhibit B shall apply to the transferred Shares and such trust. The intention of this Section 20.2 is to cause each Shareholder to bear the consequences of direct and indirect Transfers that relate to such Shareholder’s Shares that otherwise would have caused equity interests of a REIT Subsidiary to be automatically transferred to a Charitable Trust (or similar) under the applicable REIT Subsidiary Agreement.
(b) In the event that (i) any Share is Transferred or any direct or indirect ownership interest in any Shareholder is Transferred and (ii) notwithstanding Section 20.2(a), above, as a result of such Transfer, the interests in any REIT Subsidiary that are held by the Company and/or Series are subject to Section 2.1.1 of Exhibit B, then (A) the Shareholder who is the transferee of the Shares or whose Shares are the subject of the Transfer of the direct or indirect ownership interest, as the case may be, shall (1) repay to the Company and/or Series the amount
REIT Provisions. Notwithstanding any other provision of this Agreement or any other document governing the management and operation of the Company or a Venture Sub, Venture Corp. shall have the right to direct the Manager to cause the Company to take any reasonable action or to refrain from taking any action (including but not limited to using a protective trust to own assets) to (i) preserve the continued qualification of IRC as a real estate investment trust under Section 856 of the Code (a “REIT”), (ii) preserve the continued qualification of any Affiliates of IRC as taxable or qualified REIT subsidiaries and (iii) avoid the imposition of additional taxes on IRC and its Affiliates under Section 857 of the Code or Section 4981 of the Code and the Treasury Regulations promulgated thereunder (collectively the “REIT Rules”). The Members agree that in the event that Venture Corp. proposes to have the Manager take any action or refrain from taking any action (or cause the Company to take any action or refrain from taking any action) to ensure the continued qualification of IRC as a REIT, to preserve the continued qualification of any Affiliates of IRC as taxable or qualified REIT subsidiaries or to avoid the imposition of additional taxes under the REIT Rules on IRC, Venture Corp. shall (x) notify and consult with the Manager regarding, and prior to directing, such proposed action and (y) not have liability to IREX for monetary damages or otherwise for losses sustained or liabilities incurred in connection with such actions provided that Venture Corp. acts in good faith to determine and implement a course of action that preserves IRC’s REIT status or avoids the imposition of additional taxes on IRC or Venture Corp. in a manner which minimizes the adverse effects on IREX’s rights and obligations hereunder.
REIT Provisions. (a) Notwithstanding anything to the contrary in this Agreement, without the prior consent of the Majority Member, the Company shall not:
(i) acquire any stock or securities of another issuer, provided, however, that the Company may acquire assets described in Section 856(c)(4)(A) of the Code;
(ii) enter into any lease or permit any sublease that 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 that provides for the rental to others of personal property, except a lease that 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) acquire or hold debt unless (x) 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 (y) the debt is secured by mortgages on real property or on interests in real property that have a value at least equal to the amount of such debt and any other debt that is senior to or pari passu with the debt acquired or held by the Company;
(v) engage directly or indirectly in any sale or exchange of property that could result in the imposition of a prohibited transactions tax on any Affiliate of the Majority Member pursuant to Section 857 of the Code in the reasonable opinion of the Company’s lawyers;
(vi) make an election or take any action that would cause the Company to be treated as an entity (including a publicly traded partnership as defined in Section 7704 of the Code) that is not classified as a partnership for federal income tax purposes;
(vii) enter into any agreement where the Company receives amounts, directly or indirectly, for rendering services to the tenants of any real property held directly or indirectly by the Company other than (x) amounts received for services that are customarily furnished or rendered in connection with the rental of real property of a similar class in the geographic areas in which such real property is located where such services are either provided by (A) an Independent Con...
REIT Provisions. Notwithstanding the foregoing provisions of this Section 22 or any other provision of this Warrant but nonetheless subject to the provisions of Section 8(d), there shall be no limitation on a Holder’s sale or other disposition of this Warrant or any securities issued or to be issued pursuant to this Warrant if the Holder intends to qualify as a real estate investment trust for federal income tax purposes and believes (as determined in the holder’s sole discretion) that continued ownership of such securities could have an adverse impact on its ability to qualify as a real estate investment trust.
