Common use of Deficit Restoration Obligation Clause in Contracts

Deficit Restoration Obligation. The Partnership will maintain an amount of indebtedness of the Partnership that would be considered a Recourse Liability (taking into account all of the facts and circumstances related to the indebtedness, the Partnership and the General Partner) equal to or greater than the sum of the amounts subject to a DRO of all Protected Partners and other partners in the Partnership (the “Aggregate DRO Amount”). The deficit restoration obligation shall be conclusively presumed to cause the Protected Partner to be allocated an amount of liabilities equal to the DRO Amount of such Protected Partner for purposes of Section 752 of the Code, provided that (1) the Partnership maintains an amount of debt that is considered “recourse” indebtedness (determined for purposes of Section 752 of the Code and taking into account all of the facts and circumstances related to the indebtedness, the Partnership and the General Partner) equal to the aggregate DRO Amounts of all partners of the Partnership and (2) all other terms and conditions of the Partnership Agreement with respect to such deficit restoration obligation are met. For the avoidance of doubt, the purpose of this Section 3.8 is not to require the Partnership to incur or increase the amount of Recourse Liabilities, if any, to which the Protected Properties are subject, provided that the Partnership maintains in place sufficient Recourse Liabilities to cover the Aggregate DRO Amount, if any, from time to time and does not take any actions (or cause or permit such actions to be taken) that would decrease the amount of such Recourse Liabilities that are allocable to the Protected Partners under Section 752 of the Code as a result of any such DRO entered into by such Protected Partner.

Deficit Restoration Obligation. The In the event a Protected Partner has elected to enter into a DRO, the Partnership will maintain an amount of indebtedness of the Partnership that would be considered a Recourse Liability “recourse” indebtedness (determined for purposes of Section 752 of the Code and taking into account all of the facts and circumstances related to the indebtedness, the Partnership and the General Partner) equal to or greater than the sum of the amounts subject to a total amount of the DRO of all Protected Partners and (plus, the total amount of the DRO, if any, of other partners in the Partnership (the “Aggregate DRO Amount”Partnership). The Except as required by a change in law or regulation (or administrative interpretations thereof), the deficit restoration obligation evidenced thereby shall be conclusively presumed to cause the Protected Partner to be allocated an amount of liabilities equal to the amount of the DRO Amount of such Protected Partner for purposes of Section Sections 465 and 752 of the Code, provided that (1) the Partnership maintains an amount of debt that is considered “recourse” indebtedness (determined for purposes of Section 752 of the Code and taking into account all of the facts and circumstances related to the indebtedness, the Partnership and the General Partner) equal to the aggregate amounts of the DRO Amounts of all partners of the Partnership and (2) all other terms and conditions of the Partnership Agreement with respect to such deficit restoration obligation are ACTIVE 203305734v.1 met. For the avoidance of doubt, the purpose of this Section 3.8 is not to require the Partnership to incur or increase the amount of Recourse Liabilities“recourse” indebtedness, if any, to which the Protected Properties are subject, provided provided, however, that the Partnership maintains in place at the same time sufficient Recourse Liabilities other “recourse” indebtedness to cover the Aggregate DRO Amount, if any, from time to time and does not take any actions (or cause or permit such actions to be taken) that would decrease the amount of such Recourse Liabilities that are allocable to the Protected Partners under Section 752 aggregate amounts of the Code as a result DRO of any such DRO entered into by such Protected Partnerall partners of the Partnership.

Deficit Restoration Obligation. The In the event a Protected Partner has elected to enter into a DRO, the Partnership will maintain an amount of indebtedness of the Partnership that would be considered a Recourse Liability “recourse” indebtedness (taking into account all of the facts and circumstances related to the indebtedness, the Partnership and the General Partner) equal to or greater than the sum of the amounts subject to a “DRO Amounts” (as defined in the Partnership Agreement) of all Protected Partners and (plus, the DRO Amounts, if any, of other partners in the Partnership (the “Aggregate DRO Amount”Partnership). The deficit restoration obligation shall be conclusively presumed to cause the Protected Partner to be allocated an amount of liabilities equal to the DRO Amount of such Protected Partner for purposes of Section Sections 465 and 752 of the Code, provided that (1) the Partnership maintains an amount of debt that is considered “recourse” indebtedness (determined for purposes of Section 752 of the Code and taking into account all of the facts and circumstances related to the indebtedness, the Partnership and the General Partner) equal to the aggregate DRO Amounts of all partners of the Partnership and (2) all other terms and conditions of the Partnership Agreement with respect to such deficit restoration obligation are met. For the avoidance of doubt, the purpose of this Section 3.8 is not to require the Partnership to incur or increase the amount of Recourse Liabilities“recourse” indebtedness, if any, to which the Protected Properties are subject, provided provided, however, that the Partnership maintains in place at the same time sufficient Recourse Liabilities other “recourse” indebtedness to cover the Aggregate aggregate DRO Amount, if any, from time to time and does not take any actions (or cause or permit such actions to be taken) that would decrease the amount Amounts of such Recourse Liabilities that are allocable to the Protected Partners under Section 752 all partners of the Code as a result of any such DRO entered into by such Protected PartnerPartnership.

Deficit Restoration Obligation. The In the event a Protected Partner has elected to enter into a DRO, the Partnership will maintain an amount of indebtedness of the Partnership that would be considered a Recourse Liability (taking into account all “recourse” indebtedness of the facts and circumstances related to the indebtedness, the Partnership and the General Partner) at least equal to or greater than the sum of the amounts subject to a “DRO Amounts” (as defined in the Partnership Agreement) of all Protected Partners and (plus, the DRO Amounts, if any, of other partners in the Partnership (the “Aggregate DRO Amount”Partnership). The deficit restoration obligation DRO entered into by the Protected Partner pursuant to this Agreement shall be conclusively presumed for purposes of this Agreement, to cause the Protected Partner to be allocated an amount of liabilities equal to the DRO Amount of such Protected Partner for purposes of Section Sections 465 and 752 of the Code, provided . 3.9. Presumption as to Schedule 3.9. A guarantee in the form of the Guarantee Agreement attached hereto as Schedule 3.9 that is (1A) properly executed by the Partner Guarantor and the lender and (B) delivered to the lender shall be conclusively presumed to satisfy the conditions set forth in Section 3.3(i) and 3.3(iii) and to have caused the Guaranteed Debt to be considered allocable to the Protected Partner who enters into such Guarantee Agreement pursuant to Treasury Regulation Section 1.752-2 so long as all of the following conditions are met with respect such Guaranteed Debt: (i) there are no other guarantees in effect with respect to such Guaranteed Debt (other than the guarantees contemporaneously being entered into by the Partner Guarantors pursuant to this Article 3 or that are otherwise permitted pursuant to 3.3(i) and (v)); (ii) the Partnership maintains an amount of debt collateral securing such Guaranteed Debt is not, and shall not thereafter become, collateral for any other indebtedness that is senior to or pari passu with such Guaranteed Debt; (iii) no additional guarantees with respect to such Guaranteed Debt will be entered into during the applicable Tax Protection Period pursuant to the proviso set forth in Section 3.6; (iv) the lender with respect to such Guaranteed Debt is not the Partnership, any Subsidiary or other entity in which the Partnership owns a direct or indirect interest, the REIT, any other partner in the Partnership, or any person related to any partner in the Partnership as determined for purposes of Treasury Regulation Section 1.752-2 or any person that would be considered a “recourserelated party” indebtedness (as determined for purposes of Section 752 465 of the Code and taking into account all Code; and (v) none of the facts and circumstances REIT, nor any other partner in the Partnership, nor any person related to the indebtedness, any partner in the Partnership and as determined for purposes of Treasury Regulation Section 1.752-2 shall have provided, or shall thereafter provide, collateral for, or otherwise shall have entered into, or shall thereafter enter into, a relationship that would cause such person to be considered to bear the General Partner) equal to the aggregate DRO Amounts economic risk of all partners of the Partnership and (2) all other terms and conditions of the Partnership Agreement loss with respect to such deficit restoration obligation are metGuaranteed Debt, as determined for purposes of Treasury Regulation Section 1.752-2 or that would cause such person to be considered “at risk” with respect to such Guaranteed Debt, as determined for purposes of Section 465 of the Code. For Notwithstanding the avoidance foregoing, if, due to a change in law, a Protected Partner believes that such Protected Partner may no longer continue to be allocated such Protected Partner’s Guaranteed Amount of doubta Guaranteed Debt, the purpose such Protected Partner may request a modification of this Section 3.8 is not to require such Guarantee Agreement and the Partnership will use its commercially reasonable efforts to incur work with the lender with respect to such Guaranteed Debt to have the Guarantee Agreement amended in a manner that will permit such Protected Partner to be allocated such Protected Partner’s Guaranteed Amount with respect to the Guaranteed Debt, or increase such Protected Partner, at its option shall be offered the opportunity to enter into a DRO, in an amount equal to such Guaranteed Amount so that the amount of Recourse Liabilities, if any, Partnership liabilities allocated to which the such Protected Properties are subject, provided that the Partnership maintains in place sufficient Recourse Liabilities to cover the Aggregate DRO Amount, if any, from time to time and does Partner shall not take any actions (or cause or permit such actions to be taken) that would decrease the amount of such Recourse Liabilities that are allocable to the Protected Partners under Section 752 of the Code as a result of any such DRO entered into by such Protected Partnerthe change in law.