Common use of REIT Limitations Clause in Contracts

REIT Limitations. Anything contained herein to the contrary notwithstanding, Tenant shall not: (i) sublet the Premises or assign this Lease on any basis such that the Rent or other amounts to be paid by the sublessee or assignee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of the sublessee or assignee or derived by any other Person from the Premises; (ii) sublet the Premises or assign this Lease to any Person that, under Section 856(d)(2)(B) of the Internal Revenue Code of 1986, as amended (the “Code”), Landlord or its general partner owns, directly or indirectly 9actually or by applying constructive ownership rules set forth in Section 856(d)(5) of the Code), a ten percent (10%) or greater interest (including in the case of any person which is a corporation, stock of such person possessing ten percent (10%) or more of the total combined voting power of all classes of stock entitled to vote, or ten percent (10%) or more of the total number of shares of all classes of stock of such person; or in the case of any person which is not a corporation, an interest of ten percent (10%) or more in the assets or net profits of such person); or (iii) sublet the Premises or assign this Lease in any other manner or otherwise derive any income which could cause any portion of the amounts received by Landlord pursuant hereto or any sublease to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Code, or which could cause any other income received by Landlord to fail to qualify as income described in Section 856(c)(2) or (c)(3) of the Code. The requirements of this Paragraph 14 shall likewise apply to any further assignment or subleasing by any subtenant. Anything contained herein to the contrary notwithstanding: (i) Tenant does not, and shall not at any time during the Term own, directly or indirectly (actually or by applying constructive ownership rules set forth in Section 856(d)(5) of the Code) ten percent (10%) or more in value of the shares of CARS or unless expressly waived by the Board of Trustees of CARS, a ten percent (10%) or greater interest in Landlord; (ii) Tenant shall not in the event of any actual or imminent default engage in any transaction that would prevent Landlord from treating the Premises as “foreclosure property” (within the meaning of Section 856(e) of the Code); (iii) Tenant is not and will not be a “tax-exempt entity” (within the meaning of Section 168(h)(2) of the Code), and no person holding an interest in Tenant is or will be a person that causes all or any portion of the Premises to be treated as “tax-exempt use property” (within the meaning of Section 168(h)(1) of the Code); and (iv) Tenant shall at all times treat this Lease as a true lease for Federal income tax purposes. The representations and warranties set forth in this Paragraph 14 are continuing representations and warranties which shall remain in effect for the entire Term of this Lease.

REIT Limitations. Anything contained herein (a) Summit is owned by a real estate investment trust ("REIT") that is subject to the contrary notwithstanding, Tenant shall not: (i) sublet the Premises or assign this Lease on any basis such that the Rent or other amounts to be paid by the sublessee or assignee thereunder would be based, in whole or in part, on the income or profits derived by the business activities provisions of the sublessee or assignee or derived by any other Person from the Premises; (ii) sublet the Premises or assign this Lease to any Person that, under Code Sections 856 through and including Code Section 856(d)(2)(B) of the Internal Revenue Code of 1986, 860. So long as amended (the “Code”), Landlord or its general partner REIT owns, directly or indirectly, any Membership Interest, then notwithstanding any other provision of this Agreement, in no event shall the Manager or the Company take, or be obligated to take, any action in contravention of the following: (i) any services that would otherwise cause any rents from a Facility to be excluded from treatment as rents from real property pursuant to Section 856(d)(2)(C) of the Code shall be provided by either (1) an independent contractor (as described in Section 856(d)(3) of the Code) with respect to Summit and from whom the Company does not derive or receive any income or (2) a taxable REIT Subsidiary of Summit or an affiliate of Summit as described in Section 856(c) of the Code; (ii) the Company shall not furnish or render services to tenants or other persons, and shall not manage or operate the Facilities, other than through the operator or manager of the Facilities or its successors; (iii) except for a taxable REIT Subsidiary of an Affiliate of Summit the Company shall not own, directly or indirectly 9actually or by applying constructive ownership attribution (in accordance with attribution rules set forth referred to in Section 856(d)(5) of the Code), a ten percent (10%) or greater interest (including in the case of any person which is a corporation, stock of such person possessing ten percent (aggregate more than 10%) or more % of the total combined voting power value of all classes of stock entitled to vote, or ten percent (10%) or more than 10% of the total number of shares of all classes of stock of voting power (or, with respect to any such person; or in the case of any person which is not a corporation, an interest of ten percent (10%) % or more in the assets or net profits of such person); ) of a lessee or sublessee of all or any part of the Subsidiaries or of any other assets of the Company except in each case with the specific written approval of Summit; (iiiiv) sublet except for securities of a taxable REIT Subsidiary of Summit or its Affiliate, the Premises Company shall not own or assign this Lease acquire, directly or indirectly or by attribution, more than 10% of the total value or the total voting power of the outstanding securities of any issuer or own any other asset (including a security) which would cause Summit to fail the asset test of Section 856(c)(4)(B) of the Code; (v) the Company shall not engage in any other manner or otherwise derive any income which could cause any portion prohibited transaction within the meaning of Section 857(b)(6) of the amounts received by Landlord pursuant hereto or any sublease to fail to Code; and (vi) all Facility leases shall provide for rents that qualify as “"rents from real property” " within the meaning of Section 856(d) of the Code, or which could cause any other income received by Landlord to fail to qualify as income described in Section 856(c)(2) or (c)(3) of the Code. The requirements of this Paragraph 14 shall likewise apply to any further assignment or subleasing by any subtenant. Anything contained herein Code with respect to the contrary notwithstanding: (i) Tenant does not, and shall not at any time during the Term own, directly or indirectly (actually or by applying constructive ownership rules set forth in Section 856(d)(5) of the Code) ten percent (10%) or more in value of the shares of CARS or unless expressly waived by the Board of Trustees of CARS, a ten percent (10%) or greater interest in Landlord; (ii) Tenant shall not in the event of any actual or imminent default engage in any transaction that would prevent Landlord from treating the Premises as “foreclosure property” (within the meaning of Section 856(e) of the Code); (iii) Tenant is not and will not be a “tax-exempt entity” (within the meaning of Section 168(h)(2) of the Code), and no person holding an interest in Tenant is or will be a person that causes all or any portion of the Premises to be treated as “tax-exempt use property” (within the meaning of Section 168(h)(1) of the Code); and (iv) Tenant shall at all times treat this Lease as a true lease for Federal income tax purposes. The representations and warranties set forth in this Paragraph 14 are continuing representations and warranties which shall remain in effect for the entire Term of this LeaseREIT.