Common use of Limitation to Preserve REIT Status Clause in Contracts

Limitation to Preserve REIT Status. To the extent that any amount paid or credited to the General Partner or its officers, directors, employees or agents pursuant to Section 7.4 or Section 7.7 would constitute gross income to the Company for purposes of Sections 856(c)(2) or 856(c)(3) of the Code (a “General Partner Payment”) then, notwithstanding any other provision of this Agreement, the amount of such General Partner Payments for any fiscal year shall not exceed the lesser of: (a) an amount equal to the excess, if any, of (a) 4.9% of the General Partner’s total gross income (but not including the amount of any General Partner Payments) for the fiscal year which is described in subsections (A) through (I) of Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by the General Partner from sources other than those described in subsections (A) through (I) of Section 856(c)(2) of the Code (but not including the amount of any General Partner Payments); or (b) an amount equal to the excess, if any, of (a) 24 % of the General Partner’s total gross income (but not including the amount of any General Partner Payments) for the fiscal year which is described in subsections (A) through (I) of Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(3) of the Code) derived by the General Partner from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code (but not including the amount of any General Partner Payments); PROVIDED, HOWEVER, that General Partner Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the Company’s ability to qualify as a REIT. To the extent General Partner Payments may not be made in a year due to the foregoing limitations, such General Partner Payments shall carry over and be treated as arising in the following year, PROVIDED, HOWEVER, that such amounts shall not carry over for more than five years, and if not paid within such five-year period, shall expire; PROVIDED FURTHER, that (i) as General Partner Payments are made, such payments shall be applied first to carryover amounts outstanding, if any, and (ii) with respect to carryover amounts for more than one Partnership Year, such payments shall be applied to the earliest Partnership Year first.

Limitation to Preserve REIT Status. To the extent that any the amount paid or credited to the General Partner or its officers, directors, employees or agents pursuant to Section 7.4 or Section 7.7 would constitute gross income to the Company TFOC Inc. for purposes of Sections 856(c)(2) or 856(c)(3) of the Code (a “General Partner GP Payment”) then, notwithstanding any other provision of this Agreement, the amount of such General Partner GP Payments for any fiscal year Partnership Year shall not exceed the lesser of: (ai) an amount equal to the excess, if any, of (a) 4.94.17% of the General PartnerTFOC Inc.’s total gross income (but not including the amount of any General Partner GP Payments) for the fiscal year Partnership Year which is described in subsections (A) through (IH) of Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by the General Partner TFOC Inc. from sources other than those described in subsections (A) through (IH) of Section 856(c)(2) of the Code (but not including the amount of any General Partner GP Payments); or (bii) an amount equal to the excess, if any, of (a) 24 25% of the General PartnerTFOC Inc.’s total gross income (but not including the amount of any General Partner GP Payments) for the fiscal year Partnership Year which is described in subsections (A) through (I) of Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(3) of the Code) derived by the General Partner TFOC Inc. from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code (but not including the amount of any General Partner GP Payments); PROVIDEDprovided, HOWEVERhowever, that General Partner GP Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the CompanyTFOC Inc.’s ability to qualify as a REIT. To the extent General Partner GP Payments may not be made in a year due to the foregoing limitations, such General Partner GP Payments shall carry over and be treated as arising in the following year, PROVIDED, HOWEVER, that such amounts shall not carry over for more than five years, and if not paid within such five-year period, shall expire; PROVIDED FURTHER, that (i) as General Partner Payments are made, such payments shall be applied first to carryover amounts outstanding, if any, and (ii) with respect to carryover amounts for more than one Partnership Year, such payments shall be applied to the earliest Partnership Year first.

Limitation to Preserve REIT Status. To the extent that any the amount paid or credited to the General Partner or its officers, directors, employees or agents pursuant to Section 7.4 or Section 7.7 would constitute gross income to the Company Initial General Partner for purposes of Sections 856(c)(2) or 856(c)(3) of the Code (a “General Partner "GP Payment”") then, notwithstanding any other provision of this Agreement, the amount of such General Partner GP Payments for any fiscal year shall not exceed the lesser of: (ai) an amount equal to the excess, if any, of (a) 4.94.17% of the Initial General Partner’s 's total gross income (but not including the amount of any General Partner GP Payments) for the fiscal year which is described in subsections (A) through (IH) of Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by the Initial General Partner from sources other than those described in subsections (A) through (IH) of Section 856(c)(2) of the Code (but not including the amount of any General Partner GP Payments); or (bii) an amount equal to the excess, if any, of (a) 24 25% of the Initial General Partner’s 's total gross income (but not including the amount of any General Partner GP Payments) for the fiscal year which is described in subsections (A) through (I) of Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(3) of the Code) derived by the Initial General Partner from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code (but not including the amount of any General Partner GP Payments); PROVIDEDprovided, HOWEVERhowever, that General Partner GP Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the Company’s Initial General Partner's ability to qualify as a REIT. To the extent General Partner GP Payments may not be made in a year due to the foregoing limitations, such General Partner GP Payments shall carry over and be treated as arising in the following year, PROVIDED, HOWEVER, that such amounts shall not carry over for more than five years, and if not paid within such five-year period, shall expire; PROVIDED FURTHER, that (i) as General Partner Payments are made, such payments shall be applied first to carryover amounts outstanding, if any, and (ii) with respect to carryover amounts for more than one Partnership Year, such payments shall be applied to the earliest Partnership Year first.

Limitation to Preserve REIT Status. To the extent that any amount paid or credited to the General Partner or any of its officers, directors, trustees, employees or agents pursuant to Section 7.4 or Section 7.7 would constitute gross income to the Company General Partner for purposes of Sections Section 856(c)(2) or 856(c)(3) of the Code (a “"General Partner Payment”'') then, notwithstanding any other provision of this Agreement, the amount of such General Partner Payments Payment for any fiscal year shall not exceed the lesser of: (ai) an amount equal to the excess, if any, of (a) 4.94.20% of the General Partner’s 's total gross income (but not including the amount of any General Partner Payments) for the fiscal year which is described in subsections (A) through though (IH) of Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by the General Partner from sources other than those described in subsections (A) through (IH) of Section 856(c)(2) of the Code (but not including the amount of any General Partner Payments); or (bii) an amount equal to the excess, if any, any of (a) 24 25% of the General Partner’s 's total gross income (but not including the amount of any General Partner Payments) for the fiscal year which is described in subsections (A) through (I) of Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(3) of the Code) derived by the General Partner from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code (but not including the amount of any General Partner Payments); PROVIDEDprovided, HOWEVERhowever, that General Partner Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the Company’s General Partner's ability to qualify as a REIT. To the extent General Partner Payments may not be made in a year due to the foregoing limitations, such General Partner Payments shall carry over and be treated as arising in the following year, PROVIDEDprovided, HOWEVERhowever, that such amounts shall not carry over for more than five years, and if not paid within such five-five year period, shall expire; PROVIDED FURTHERprovided further, that (i) as General Partner Payments are made, such payments shall be applied first to carryover carry over amounts outstanding, if any, and (ii) with respect to carryover carry over amounts for more than one Partnership Year, such payments shall be applied to the earliest Partnership Year first.