Common use of Limitation to Preserve REIT Status Clause in Contracts

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any fiscal year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments) for the Fiscal Year that is described in subsections (A) through (H) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (H) of Code Section 856(c)(2) (but not including the amount of any REIT Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments) for the Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, reasonably determines, on the advice of counsel, that the receipt of such excess amounts shall not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a fiscal year as a consequence of the limitations set forth herein, such REIT Payments shall carry over and shall be treated as arising in the following fiscal year(s). The purpose of the limitations contained herein is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section shall be interpreted and applied to effectuate such purpose.

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, with respect to any period in which the Initial Limited Partner has elected to be treated as a REIT for federal income tax purposes, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to any REIT the Initial Limited Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Initial Limited Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3) that is not described in subsections (A) through (I) of Code Section 856(c)(2) or subsections (A) through (I) of Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any fiscal year Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT the Initial Limited Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (ai) four and nine-tenths percent (4.94%) of the REIT Initial Limited Partner’s total gross income (but excluding the amount of any REIT PaymentsPayments and any amounts excluded from gross income pursuant to Section 856(c) of the Code) for the Fiscal Partnership Year that is described in subsections (A) through (H) of Code Section 856(c)(2) over (bii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (H) of Code Section 856(c)(2) (but not including the amount of any REIT Payments); or (ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross income (but excluding the amount of any REIT Payments) for the Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Initial Limited Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3856(c)(2) (but not including the amount of any REIT PaymentsPayments or any amounts excluded from gross income pursuant to Section 856(c) of the Code); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, reasonably determines, on the advice of counsel, that the receipt of such excess amounts shall not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a fiscal year as a consequence of the limitations set forth herein, such REIT Payments shall carry over and shall be treated as arising in the following fiscal year(s). The purpose of the limitations contained herein is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section shall be interpreted and applied to effectuate such purpose.or

Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to To the extent that any amount paid or credited to the amount paid, credited, distributed General Partner or reimbursed by the Partnership to any REIT General Partner Entity or its officers, directors, employees or agents, whether as a reimbursement, fee, expense agents pursuant to Section 7.4 or indemnity (a “REIT Payment”), Section 7.7 hereof would constitute gross income to the REIT General Partner Entity or the General Partner (if it is to be qualified as a REIT) for purposes of Code Section 856(c)(2) or 856(c)(3) of the Code Section 856(c)(3), (a “General Partner Payment”) then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced Payments for any fiscal year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of: (i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) 5% of the REIT General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) total gross income (but excluding not including the amount of any REIT General Partner Payments) for the Fiscal Year that is described in subsections (A) through (H) of Code Section 856(c)(2) fiscal year over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) of the Code) derived by the REIT General Partner Entity or the General Partner (if it is to be qualified as a REIT) 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 REIT General Partner Payments); or (ii) an amount equal to the excess, if any, any of (a) twenty-four percent (24%) 25% of the REIT General Partner Entity’s or the General Partner’s (if it is to be qualified as a REIT) total gross income (but excluding not including the amount of any REIT General Partner Payments) for the Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) fiscal year over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) of the Code) derived by the REIT General Partner Entity or the General Partner (if it is to be qualified as a REIT) 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 REIT General Partner Payments); provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the General Partner, reasonably determines, on the advice of counsel, that the receipt of such excess amounts shall not adversely affect the REIT Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a fiscal year as a consequence of the limitations set forth herein, such REIT Payments shall carry over and shall be treated as arising in the following fiscal year(s). The purpose of the limitations contained herein is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section shall be interpreted and applied to effectuate such purpose.General