Debt Maintenance and Allocation. (a) During the Tax Protection Period, the Operating Partnership shall: maintain on a continuous basis an amount of Qualified Liabilities at least equal to the aggregate Required Liability Amount of the Guarantee Partners. For the avoidance of doubt, and notwithstanding any other provision of this Agreement, the Operating Partnership shall not be required to maintain any amount of Qualified Liabilities in excess of the aggregate Required Liability Amount of all Guarantee Partners. (i) During the Tax Protection Period, the Operating Partnership shall provide each Guarantee Partner with the opportunity to execute a guarantee of one or more Qualified Liabilities that are Guarantee Permissible Liabilities in an amount up to such Guarantee Partner’s Required Liability Amount (each such opportunity and each opportunity required by Section 2.4(c), a “Guaranty Opportunity”), and (ii) after the Tax Protection Period, and for so long as a Guarantee Partner is a partner in the Operating Partnership, the Operating Partnership shall use commercially reasonable efforts to make Guaranty Opportunities available to the Guarantee Partner, provided that in the case of this clause (ii), the Operating Partnership shall not be required to incur any indebtedness that it would not otherwise have incurred and shall not be required to continue to maintain any indebtedness that it would not otherwise maintain, as determined by the Operating Partnership in its reasonable discretion; provided, however, that in the case of clauses (i) and (ii) the aggregate amount of all guarantees executed by all Guarantee Partners shall not exceed the aggregate Required Liability Amount of all Guarantee Partners. The Operating Partnership shall have the discretion to identify the Qualified Liability or Qualified Liabilities that shall be made available for guarantee by each Guarantee Partner. The Operating Partnership and each Guarantee Partner shall cooperate in good faith to determine mutually acceptable form and manner of the guarantee, provided such parties agree that the guarantee may be on a “bottom dollar” basis if so requested by a Guarantee Partner. Each Guarantee Partner and its direct and indirect owners may allocate the Guarantee Opportunity afforded to such Guarantee Partner in any manner they choose. The Operating Partnership agrees to file its tax returns allocating any debt subject to a Guarantee to the applicable Guarantee Partners, unless otherwise required by applicable law. Each Guarantee Partner shall bear the costs incurred by it in connection with the execution of any guarantee to which it is a party. To the extent a Guarantee Partner executes a guarantee, the Operating Partnership shall deliver a copy of such guarantee to the lender under the Guaranteed Liability promptly after receiving such copy from the relevant Guarantee Partner. (c) During the Tax Protection Period, the Operating Partnership shall not allow a Debt Notification Event to occur unless the Operating Partnership provides at least thirty (30) days’ written notice (a “Section 2.4 Notice”) to each Guarantee Partner that may be affected thereby. The Section
Appears in 2 contracts
Samples: Tax Protection Agreement (Younan Properties Inc), Tax Protection Agreement (Younan Properties Inc)
Debt Maintenance and Allocation. (a) During the Tax Protection Period, the Operating Partnership shall: (i) maintain on a continuous basis an amount of Qualified Liabilities at least equal to the aggregate Required Liability Amount Amount; and (ii) provide the Partners’ Representative, thirty (30) days prior to the Closing Date, with a description of the Guarantee Partnersnature and amount of any Qualified Liabilities that are available to be guaranteed by the Guaranty Partners pursuant to Section 2.4(b) of this Agreement. For the avoidance of doubt, and notwithstanding any other provision of this Agreement, the Operating Partnership shall not be required to maintain any amount of Qualified Liabilities in excess of the aggregate Required Liability Amount of all Guarantee Guaranty Partners.
(i) During At the Closing Date and during the Tax Protection PeriodPeriod as described in Section 2.4(c), the Operating Partnership shall provide each Guarantee Guaranty Partner with the opportunity to execute a guarantee guaranty, substantially in the form attached hereto as Exhibit C or otherwise in a form and manner that is reasonably acceptable to the Partners’ Representative, of one or more Qualified Liabilities that are Guarantee Guaranty Permissible Liabilities in an amount up to such Guarantee Guaranty Partner’s Required Liability Amount (each such opportunity and each opportunity required by Section 2.4(cSection 2.4(c), a “Guaranty Opportunity”), and (ii) after the Tax Protection Period, and for so long as a Guarantee Guaranty Partner is a partner in the Operating Partnership, the Operating Partnership shall use commercially reasonable efforts to make Guaranty Opportunities available to the Guarantee each Guaranty Partner, provided that in the case of this clause (ii), the Operating Partnership shall not be required to incur any indebtedness that it would not otherwise have incurred and shall not be required to continue to maintain any indebtedness that it would not otherwise maintainincurred, as determined by the Operating Partnership in its reasonable discretion; provided, however, that in the case of clauses (i) and (ii) the aggregate amount of all guarantees executed guaranties required to be made available by the Operating Partnership for execution by all Guarantee Guaranty Partners shall need not exceed the aggregate Required Liability Amount of all Guarantee Guaranty Partners. The Operating Partnership shall have the discretion to identify the Qualified Liability or Qualified Liabilities that shall be made available for guarantee guaranty by each Guarantee Partner. The Operating Partnership and each Guarantee Partner shall cooperate in good faith to determine mutually acceptable form and manner of the guarantee, provided such parties agree that the guarantee may be on a “bottom dollar” basis if so requested by a Guarantee Guaranty Partner. Each Guarantee Guaranty Partner and its direct and indirect owners may allocate the Guarantee Guaranty Opportunity afforded to such Guarantee Guaranty Partner in any manner they choose. The Operating Partnership agrees to file its tax returns allocating any debt subject to a Guarantee Guaranty to the applicable Guarantee Guaranty Partners, unless otherwise ; provided that the Operating Partnership shall not be required by applicable lawto make such allocations to the extent it determines in good faith that there may not be “substantial authority” (within the meaning of Section 6662(d)(2)(B)(i) of the Code) for such allocations and so notifies the Guaranty Partner. Each Guarantee Guaranty Partner shall bear the costs incurred by it in connection with the execution of any guarantee guaranty to which it is a party. To the extent a Guarantee Guaranty Partner executes a guaranteeguaranty, the Guaranty Partner and the Operating Partnership shall jointly deliver a copy of such guarantee guaranty to the lender under the Guaranteed Liability promptly after receiving such copy from the relevant Guarantee PartnerLiability.
(c) During the Tax Protection Period, the Operating Partnership shall not allow a Debt Notification Event to occur unless the Operating Partnership provides at least thirty (30) days’ written notice (a “Section 2.4 Notice”) to each Guarantee Guaranty Partner that may be affected thereby. The Section
Appears in 2 contracts
Samples: Tax Protection Agreement (Retail Opportunity Investments Partnership, LP), Tax Protection Agreement (Retail Opportunity Investments Partnership, LP)
Debt Maintenance and Allocation. (a) During the Tax Protection Period, the Operating Partnership shall: maintain on a continuous basis an amount of Qualified Liabilities at least equal to the aggregate Required Liability Amount of the Guarantee PartnersAmount. For the avoidance of doubt, and notwithstanding any other provision of this Agreement, the Operating Partnership shall not be required to maintain any amount of Qualified Liabilities in excess of the aggregate Required Liability Amount of all Guarantee Guaranty Partners.
(i) During At the Closing Date and during the Tax Protection PeriodPeriod as described in Section 2.4(c), the Operating Partnership shall provide each Guarantee Guaranty Partner with the opportunity to execute a guarantee guaranty, substantially in the form attached hereto as Exhibit C or otherwise in a form and manner that is reasonably acceptable to each of the Partners' Representative and the Operating Partnership, of one or more Qualified Liabilities that are Guarantee Guaranty Permissible Liabilities in an amount up to such Guarantee Guaranty Partner’s Required Liability Amount (each such opportunity and each opportunity required by Section 2.4(c), a “Guaranty Opportunity”), and (ii) after the Tax Protection Period, and for so long as a Guarantee Partner is a partner in the Operating Partnership, the Operating Partnership shall use commercially reasonable efforts to make Guaranty Opportunities available to the Guarantee Partner, provided that in the case of this clause (ii), the Operating Partnership shall not be required to incur any indebtedness that it would not otherwise have incurred and shall not be required to continue to maintain any indebtedness that it would not otherwise maintain, as determined by the Operating Partnership in its reasonable discretion; provided, however, that in the case of clauses (i) and (ii) the aggregate amount of all guarantees executed guaranties required to be made available by the Operating Partnership for execution by all Guarantee Guaranty Partners shall need not exceed the aggregate Required Liability Amount of all Guarantee Guaranty Partners. The Operating Partnership shall have the discretion to identify the Qualified Liability or Qualified Liabilities that shall be made available for guarantee guaranty by each Guarantee Partner. The Operating Partnership and each Guarantee Partner shall cooperate in good faith to determine mutually acceptable form and manner of the guarantee, provided such parties agree that the guarantee may be on a “bottom dollar” basis if so requested by a Guarantee Guaranty Partner. Each Guarantee Guaranty Partner and its direct and indirect owners may allocate the Guarantee Guaranty Opportunity afforded to such Guarantee Guaranty Partner in any manner they choose. The Operating Partnership agrees to file its tax returns allocating any debt subject to a Guarantee Guaranty to the applicable Guarantee Guaranty Partners, unless otherwise ; provided that the Operating Partnership shall not be required by applicable lawto make such allocations to the extent it determines in good faith that there may not be “substantial authority” (within the meaning of Section 6662(d)(2)(B)(i) of the Code) for such allocations and so notifies the Guaranty Partner. Each Guarantee Guaranty Partner shall bear the costs incurred by it in connection with the execution of any guarantee guaranty to which it is a party. To the extent a Guarantee Guaranty Partner executes a guaranteeguaranty, the Guaranty Partner and the Operating Partnership shall jointly deliver a copy of such guarantee guaranty to the lender under the Guaranteed Liability promptly after receiving such copy from the relevant Guarantee PartnerLiability.
(c) During the Tax Protection Period, the Operating Partnership shall not allow a Debt Notification Event to occur unless the Operating Partnership provides at least thirty (30) days’ written notice (a “Section 2.4 Notice”) to each Guarantee Guaranty Partner that may be affected thereby. The Section
Appears in 1 contract
Samples: Tax Protection Agreement (Retail Opportunity Investments Partnership, LP)