Common use of Special Allocation of Liabilities Clause in Contracts

Special Allocation of Liabilities. If the Partnership is required to provide notice to a Protected Partner pursuant to clause (2) of Section 2.1.3(b), the Partnership shall cooperate with the Protected Partner to arrange a special allocation of liabilities of the Partnership to the Protected Partner in such amount or amounts so as to increase the amount of partnership liabilities allocated to such Protected Partner for purposes of Section 752 of the Code by an amount necessary to prevent the Protected Partner from recognizing gain or loss for federal income tax purposes as a result of the intended repayment, retirement, refinancing or other reduction (other than scheduled amortization) in the amount of liabilities with respect to a Gain Limitation Property. The Partnership shall first provide the Protected Partner with Qualified Debt so as to provide allocations of Qualified Debt to a Protected Partner pursuant to the provisions of Treasury Regulation Section 1.752-3(a)(2) or 1.752-3(a)(3) and Section 465 of the Code and the Partnership shall also offer to the Protected Partner the opportunity either (i) to enter into a “bottom dollar guarantee” meeting the requirements of Section 2.1.3(d) of certain liabilities of the Partnership (substantially in the form set forth in Schedule 2.1(e)) (a “Bottom Dollar Guarantee”) in an amount such that, when added to amounts to be allocated pursuant to the preceding portions of this sentence, totals not less than the Minimum Liability Amount. Such Bottom Dollar Guarantee shall provide that the lender of the guaranteed liability is required to pursue all other collateral and security for the guaranteed liability (other than any Bottom Dollar Guarantees) prior to seeking to collect on such a guarantee, and the lender shall have recourse against the guarantee only if, and solely to the extent that, the total amount recovered by the lender with respect to the guaranteed liability after the lender has exhausted its remedies is less than the aggregate of the guaranteed amounts with respect to such liability, and the maximum aggregate liability of each Protected Partner for all guaranteed liabilities shall be limited to the amount actually guaranteed by such Protected Partner and/or (ii) to enter into a “deficit restoration obligation” pursuant to which the Protected Partner would enter into a written obligation to restore part or all of its deficit capital account in the Partnership upon the occurrence of certain events (which written obligation may provide for an indemnity in favor of the REIT as general partner of the Partnership). In order to minimize the need to specially allocate liabilities of the Partnership pursuant to the preceding sentence, the Partnership will use the additional method under Treasury Regulations Section 1.752-3(a)(3) to allocate Non-Recourse Indebtedness attributable to a Gain Limitation Property (for purposes Treasury Regulations Section 1.752-3) to the Protected Partner to the extent that the “built-in gain” with respect to those properties exceeds the amount of the Non-Recourse Indebtedness considered secured by such Gain Limitation Property and allocated to the Protected Partner under Treasury Regulations Section 1.752-3(a)(2). For the avoidance of doubt, if the Partnership satisfies its obligations under Section 2.3(b) and Section 2.3(c) and either (i) the Protected Partner elects not to enter into a Bottom Dollar Guarantee or deficit restoration obligation or (ii) there is a Final Determination that the Bottom Dollar Guarantee or deficit restoration obligation did not cause a special allocation of liabilities for federal income tax purposes to the Protected Partner in the full amount intended, then the Partnership shall have no liability for monetary damages under Section 3.1 for any Taxes recognized by the Protected Partner as a result of such election or Final Determination.

Special Allocation of Liabilities. If the Partnership is required to provide provides notice to a Protected Partner pursuant to clause (2) of Section 2.1.3(b)2.1, the Partnership shall cooperate with the Protected Partner to arrange a special allocation of liabilities of the Partnership to the Protected Partner in such amount or amounts so as to increase the amount of partnership liabilities allocated to such Protected Partner for purposes of Section 752 of the Code by an amount necessary to prevent the Protected Partner from recognizing gain or loss for federal income tax purposes as a result of the intended repayment, retirement, refinancing or other reduction (other than scheduled amortization) in the amount of liabilities with respect to a Gain Limitation Property. The Partnership shall first provide the Protected Partner with Qualified Debt so as to provide allocations of Qualified Debt to a Protected Partner pursuant to the provisions of Treasury Regulation Section 1.752-3(a)(2) or 1.752-3(a)(3) and Section 465 of the Code and the Partnership shall also offer , including, without limitation, offering to the Protected Partner the opportunity either (i) to enter into a “bottom dollar guarantee” meeting the requirements of Section 2.1.3(d) of certain liabilities of the Partnership (substantially in the form set forth in Schedule 2.1(e2.2(b)) (a “Bottom Dollar Guarantee”) in an the amount such that, when added to amounts to be allocated pursuant to the preceding portions of this sentence, totals not less than the Minimum Liability Amount. Such Bottom Dollar Guarantee shall provide that Amount (determined as of the Closing Date) pursuant to which the lender of for the guaranteed liability is required to pursue all other collateral and security for the guaranteed liability (other than any Bottom Dollar Guarantees“bottom dollar guarantees”) prior to seeking to collect on such a guarantee, and the lender shall have recourse against the guarantee only if, and solely to the extent that, the total amount recovered by the lender with respect to the guaranteed liability after the lender has exhausted its remedies is less than the aggregate of the guaranteed amounts with respect to such liability, and the maximum aggregate liability of each Protected Partner partner for all guaranteed liabilities shall be limited to the amount actually guaranteed by such Protected Partner and/or partner or (ii) to enter into a “deficit restoration obligation” pursuant to which the Protected Partner would enter into a written obligation to restore part or all of its deficit capital account in the Partnership upon the occurrence of certain events (which written obligation may provide for an indemnity in favor of the REIT as general partner of the Partnership). In order to minimize the need to specially allocate liabilities of the Partnership pursuant to the preceding sentence, the Partnership will use the additional method under Treasury Regulations Section 1.752-3(a)(3) to allocate Non-Recourse Indebtedness attributable to Nonrecourse Liabilities considered secured by a Gain Limitation Property (for purposes Treasury Regulations Section 1.752-3) to the Protected Partner to the extent that the “built-in gain” with respect to those properties exceeds the amount of the Non-Recourse Indebtedness Nonrecourse Liabilities considered secured by such Gain Limitation Property and allocated to the Protected Partner under Treasury Regulations Section 1.752-3(a)(2). For the avoidance of doubt, if the Partnership satisfies its obligations under Section 2.3(b) and Section 2.3(c) and either (i) the Protected Partner elects not to enter into a Bottom Dollar Guarantee or deficit restoration obligation or (ii) there is a Final Determination that the Bottom Dollar Guarantee or deficit restoration obligation did not cause a special allocation of liabilities for federal income tax purposes to the Protected Partner in the full amount intended, then the Partnership shall have no liability for monetary damages under Section 3.1 for any Taxes recognized by the Protected Partner as a result of such election or Final Determination.

Special Allocation of Liabilities. If the Partnership is required to provide provides notice to a Protected Partner pursuant to clause (2) of Section 2.1.3(b)3.1, the Partnership shall cooperate with the Protected Partner to arrange a special allocation of liabilities of the Partnership to the Protected Partner in such amount or amounts so as to increase the amount of partnership liabilities allocated to such Protected Partner for purposes of Section 752 of the Code by an amount necessary to prevent the Protected Partner from recognizing gain or loss for federal income tax purposes as a result of the intended repayment, retirement, refinancing or other reduction (other than scheduled amortization) in the amount of liabilities with respect to a Gain Limitation Property. The Partnership shall first provide the Protected Partner with Qualified Debt so as to provide allocations of Qualified Debt to a Protected Partner pursuant to the provisions of Treasury Regulation Section 1.752-3(a)(2) or 1.752-3(a)(3) and Section 465 of the Code and the Partnership shall also offer , including, without limitation, offering to the Protected Partner the opportunity either (i) to enter into a “bottom dollar guarantee” meeting the requirements of Section 2.1.3(d) of certain liabilities of the Partnership (substantially in the form set forth in Schedule 2.1(e3.2(b)) (a “Bottom Dollar Guarantee”) in an the amount such that, when added to amounts to be allocated pursuant to the preceding portions of this sentence, totals not less than the Minimum Liability Amount. Such Bottom Dollar Guarantee shall provide that Amount (determined as of the Closing Date) pursuant to which the lender of for the guaranteed liability is required to pursue all other collateral and security for the guaranteed liability (other than any Bottom Dollar Guarantees“bottom dollar guarantees”) prior to seeking to collect on such a guarantee, and the lender shall have recourse against the guarantee only if, and solely to the extent that, the total amount recovered by the lender with respect to the guaranteed liability after the lender has exhausted its remedies is less than the aggregate of the guaranteed amounts with respect to such liability, and the maximum aggregate liability of each Protected Partner partner for all guaranteed liabilities shall be limited to the amount actually guaranteed by such Protected Partner and/or partner or (ii) to enter into a “deficit restoration obligation” pursuant to which the Protected Partner would enter into a written obligation to restore part or all of its deficit capital account in the Partnership upon the occurrence of certain events (which written obligation may provide for an indemnity in favor of the REIT as general partner of the Partnership). In order to minimize the need to specially allocate liabilities of the Partnership pursuant to the preceding sentence, the Partnership will use the additional method under Treasury Regulations Section 1.752-3(a)(3) to allocate Non-Recourse Indebtedness attributable to Nonrecourse Liabilities considered secured by a Gain Limitation Property (for purposes Treasury Regulations Section 1.752-3) to the Protected Partner to the extent that the “built-in gain” with respect to those properties exceeds the amount of the Non-Recourse Indebtedness Nonrecourse Liabilities considered secured by such Gain Limitation Property and allocated to the Protected Partner under Treasury Regulations Section 1.752-3(a)(2). For the avoidance of doubt, if the Partnership satisfies its obligations under Section 2.3(b) and Section 2.3(c) and either (i) the Protected Partner elects not to enter into a Bottom Dollar Guarantee or deficit restoration obligation or (ii) there is a Final Determination that the Bottom Dollar Guarantee or deficit restoration obligation did not cause a special allocation of liabilities for federal income tax purposes to the Protected Partner in the full amount intended, then the Partnership shall have no liability for monetary damages under Section 3.1 for any Taxes recognized by the Protected Partner as a result of such election or Final Determination.

Special Allocation of Liabilities. If the Partnership is required to provide notice to a Protected Partner pursuant to clause (2ii) of Section 2.1.3(b2.1(c)(ii)(B), the Partnership shall cooperate with the Protected Partner to arrange a special allocation of liabilities of the Partnership to the Protected Partner in such amount or amounts so as to increase the amount of partnership liabilities allocated to such Protected Partner for purposes of Section 752 of the Code by an amount necessary to prevent the Protected Partner from recognizing gain or loss for federal income tax purposes as a result of the intended repayment, retirement, refinancing or other reduction (other than scheduled amortization) in the amount of liabilities with respect to a Gain Limitation Property. The Partnership shall first provide the Protected Partner with Qualified Debt so as to provide allocations of Qualified Debt to a Protected Partner pursuant to the provisions of Treasury Regulation Section 1.752-3(a)(2) or 1.752-3(a)(3) and Section 465 of the Code and the Partnership shall also offer to the Protected Partner the opportunity either (i) to enter into a “bottom dollar guarantee” meeting the requirements of Section 2.1.3(d2.1(c)(iv) of certain liabilities of the Partnership (substantially in the form set forth in Schedule 2.1(e)) (a “Bottom Dollar Guarantee”) in an amount such that, when added to amounts to be allocated pursuant to the preceding portions of this sentence, totals not less than the Minimum Liability Amount. Such Bottom Dollar Guarantee shall provide that the lender of the guaranteed liability is required to pursue all other collateral and security for the guaranteed liability (other than any Bottom Dollar Guarantees) prior to seeking to collect on such a guarantee, and the lender shall have recourse against the guarantee only if, ; and solely to the extent that, the total amount recovered by the lender with respect to the guaranteed liability after the lender has exhausted its remedies is less than the aggregate of the guaranteed amounts with respect to such liability, and the maximum aggregate liability of each Protected Partner for all guaranteed liabilities shall be limited to the amount actually guaranteed by such Protected Partner and/or (ii) to enter into a “deficit restoration obligation” pursuant to which the Protected Partner would enter into a written obligation to restore part or all of its deficit capital account in the Partnership upon the occurrence of certain events (which written obligation may provide for an indemnity in favor of the REIT as general partner of the Partnership). In order to minimize the need to specially allocate liabilities of the Partnership pursuant to the preceding sentence, the Partnership will use the additional method under Treasury Regulations Section 1.752-3(a)(3) to allocate Non-Recourse Indebtedness attributable to a Gain Limitation Property (for purposes Treasury Regulations Section 1.752-3) to the Protected Partner to the extent that the “built-in gain” with respect to those properties exceeds the amount of the Non-Recourse Indebtedness considered secured by such Gain Limitation Property and allocated to the Protected Partner under Treasury Regulations Section 1.752-3(a)(2). For the avoidance of doubt, if the Partnership satisfies its obligations under Section 2.3(b2.1(c)(ii) and or Section 2.3(c2.1(c)(iii) and either (i) the Protected Partner elects not to enter into a Bottom Dollar Guarantee or deficit restoration obligation or (ii) there is a Final Determination that the Bottom Dollar Guarantee or deficit restoration obligation did not cause a special allocation of liabilities for federal income tax purposes to the Protected Partner in the full amount intended, then the Partnership shall have no liability for monetary damages under Section 3.1 for any Taxes recognized by the Protected Partner as a result of such election or Final Determination.

Special Allocation of Liabilities. If the Partnership is required to provide provides notice to a Protected Partner pursuant to clause (2) of Section 2.1.3(b)3.1, the Partnership shall cooperate with the Protected Partner to arrange a special allocation of liabilities of the Partnership to the Protected Partner in such amount or amounts so as to increase the amount of partnership liabilities allocated to such Protected Partner for purposes of Section 752 of the Code by an amount necessary to prevent the Protected Partner from recognizing gain or loss for federal income tax purposes as a result of the intended repayment, retirement, refinancing or other reduction (other than scheduled amortization) in the amount of certain liabilities with respect to a Gain Limitation Property. The Partnership shall first provide the Protected Partner with Qualified Debt so as to provide allocations of Qualified Debt to a Protected Partner pursuant to the provisions of Treasury Regulation Section 1.752-3(a)(2) or 1.752-3(a)(3) and Section 465 of the Code and the Partnership shall also offer , including, without limitation, offering to the Protected Partner the opportunity either (i) to enter into a “bottom dollar guarantee” meeting the requirements of Section 2.1.3(d) of certain liabilities of the Partnership (substantially in the form set forth in Schedule 2.1(e3.2(b)) (a “Bottom Dollar Guarantee”) in an the amount such that, when added to amounts to be allocated pursuant to the preceding portions of this sentence, totals not less than the Minimum Liability Amount. Such Bottom Dollar Guarantee shall provide that Amount (determined as of the Closing Date) pursuant to which the lender of for the guaranteed liability is required to pursue all other collateral and security for the guaranteed liability (other than any Bottom Dollar Guarantees“bottom dollar guarantees”) prior to seeking to collect on such a guarantee, and the lender shall have recourse against the guarantee only if, and solely to the extent that, the total amount recovered by the lender with respect to the guaranteed liability after the lender has exhausted its remedies is less than the aggregate of the guaranteed amounts with respect to such liability, and the maximum aggregate liability of each Protected Partner partner for all guaranteed liabilities shall be limited to the amount actually guaranteed by such Protected Partner and/or partner or (ii) to enter into a “deficit restoration obligation” pursuant to which the Protected Partner would enter into a written obligation to restore part or all of its deficit capital account in the Partnership upon the occurrence of certain events (which written obligation may provide for an indemnity in favor of the REIT as general partner of the Partnership). In order to minimize the need to specially allocate liabilities of the Partnership pursuant to the preceding sentence, the Partnership will use the additional method under Treasury Regulations Section 1.752-3(a)(3) to allocate Non-Recourse Indebtedness attributable to Nonrecourse Liabilities considered secured by a Gain Limitation Property (for purposes Treasury Regulations Section 1.752-3) to the Protected Partner to the extent that the “built-in gain” with respect to those properties exceeds the amount of the Non-Recourse Indebtedness Nonrecourse Liabilities considered secured by such Gain Limitation Property and allocated to the Protected Partner under Treasury Regulations Section 1.752-3(a)(2). For the avoidance of doubt, if the Partnership satisfies its obligations under Section 2.3(b) and Section 2.3(c) and either (i) the Protected Partner elects not to enter into a Bottom Dollar Guarantee or deficit restoration obligation or (ii) there is a Final Determination that the Bottom Dollar Guarantee or deficit restoration obligation did not cause a special allocation of liabilities for federal income tax purposes to the Protected Partner in the full amount intended, then the Partnership shall have no liability for monetary damages under Section 3.1 for any Taxes recognized by the Protected Partner as a result of such election or Final Determination.