EXHIBIT 10.20


 





Tax Protection Agreement


This TAX PROTECTION AGREEMENT (this “Agreement”)
is entered into as of December 4, 2015, by and among Retail Opportunity Investments Corp., a Maryland corporation (the “REIT”),
Retail Opportunity Investments Partnership, LP, a Delaware limited partnership (the “Operating Partnership”),
and each Protected Partner identified as a signatory on Schedule I, as amended from time to time.


RECITALS


WHEREAS, pursuant to that certain Purchase,
Sale and Contribution Agreement dated April 13, 2015, between the REIT, the Operating Partnership and the “Seller”
signatory thereto (the “Purchase Agreement”), the REIT intends cause the Operating Partnership to purchase the
real property and improvements commonly known as The Iron Horse Plaza located at 345 Railroad Avenue, Danville, Contra Costa County,
California (the “Property”) from the Sellers; and


WHEREAS, in connection with the Purchase
Agreement, the REIT and the Operating Partnership shall enter into this Agreement with the Protected Partners, who are electing
to receive common units of partnership interest in the Operating Partnership (“OP Units”) in exchange for their
tenants in common interest in the Property pursuant to the Purchase Agreement.


NOW, THEREFORE, in consideration of
the promises and mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:


ARTICLE I - DEFINED TERMS


Capitalized terms employed herein and not
otherwise defined shall have the meanings assigned to them in the Purchase Agreement. Otherwise, for purposes of this Agreement
the following definitions shall apply:


Section 1.1Intentionally omitted.


Section 1.2“Agreement”
has the meaning set forth in the preamble.


Section 1.3“Closing Date”
means the closing of the Operating Partnership’s purchase of the Property pursuant to the Purchase Agreement.


Section 1.4“Code” means
the United States Internal Revenue Code of 1986, as amended.


Section 1.5Intentionally omitted


Section 1.6Intentionally omitted






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Section 1.7Intentionally omitted


Section 1.8“Exchange”
has the meaning set forth in Section 2.1(b) of this Agreement.


Section 1.9“Fundamental Transaction”
means a merger, consolidation or other combination of the Operating Partnership with or into any other entity, a transfer of all
or substantially all of the assets of the Operating Partnership, any reclassification, recapitalization or change of the outstanding
equity interests of the Operating Partnership, or a conversion of the Operating Partnership into another form of entity. Notwithstanding
the above, a Fundamental Transaction shall not include any transaction to the extent that a Protected Party is provided with an
opportunity to participate in such transaction in a manner that does not result in the recognition of taxable income or gain by
such Protected Partner under Section 704(c) of the Code, regardless of whether such Protected Partner elects to participate in
such transaction in such manner or otherwise.


Section 1.10“Gross Up Amount”
has the meaning set forth in Section 1.15 under the definition of “Make Whole Amount.”


Section 1.11Intentionally omitted


Section 1.12Intentionally omitted


Section 1.13Intentionally omitted


Section 1.14Intentionally omitted


Section 1.15“Make Whole Amount”
means, with respect to any Protected Partner that recognizes gain under Section 704(c) of the Code as a result of a Tax Protection
Period Transfer, the sum of (i) the product of (x) the income and gain recognized by such Protected Partner
under Section 704(c) of the Code in respect of such Tax Protection Period Transfer (taking into account any adjustments under
Section 743 of the Code to which such Protected Partner is entitled) multiplied by (y) the Make Whole Tax Rate,
plus (ii) an amount equal to the combined Federal, applicable state and local income taxes (calculated using the Make
Whole Tax Rate) imposed on such Protected Partner as a result of the receipt by such Protected Partner of a payment under Section
2.2 (the “Gross Up Amount”); provided, however, that the Gross Up Amount shall be computed without
regard to any losses, credit, or other tax attributes that such Protected Partner might have that would reduce its actual tax liability.


 


For purposes of calculating the amount of Section 704(c)
gain that is allocated to a Protected Partner, any “reverse Section 704(c) gain” allocated to such partner pursuant
to Treasury Regulations § 1.704-3(a)(6) shall not be taken into account; furthermore, the total amount of 704(c) gain and
income taken into account for purpose of calculating the Make Whole Amount shall not exceed the initial Section 704(c) gain amount
as of the Closing Date (as set forth on Exhibit A).






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Section 1.16“Make Whole Tax Rate”
means, with respect to a Protected Partner who is entitled to receive a payment under Section 2.2, the highest combined statutory
Federal, state and local tax rate in respect of the income or gain that gave rise to such payment, taking into account the character
of the income and gain in the hands of such Protected Partner, as applicable (reduced, in the case of Federal taxes, assuming a
full deduction is allowed for income taxes paid to a state or locality), for the taxable year in which the event that gave rise
to such payment under Section 2.2.


Section 1.17“OP Agreement”
means the Second Amended and Restated Agreement of Limited Partnership of Retail Opportunity Investments Partnership, L.P., as
amended from time to time.


Section 1.18“Partners’
Representative” means Donald F. Gaube and his executors, administrators or permitted assigns.


Section 1.19“Pass Through Entity”
means a partnership, grantor trust, or S corporation for Federal income tax purposes.


Section 1.20“Permitted Disposition”
means a sale, exchange or other disposition of OP Units (i) by a Protected Partner: (a) to such Protected Partner’s children,
spouse or issue; (b) to a trust for such Protected Partner or such Protected Partner’s children, spouse or issue; (c) in
the case of a trust which is a Protected Partner, to its beneficiaries, or any of them, whether current or remainder beneficiaries;
(d) to a revocable inter vivos trust of which such Protected Partner is a trustee; (e) in the case of any partnership or
limited liability company which is a Protected Partner, to its partners or members; and/or (f) in the case of any corporation which
is a Protected Partner, to its shareholders, and (ii) by a party described in clauses (a), (b), (c) or (d) to a partnership, limited
liability company or corporation of which the only partners, members or shareholders, as applicable, are parties described in clauses
(a), (b), (c) or (d); provided, that for purposes of the definition of Tax Protection Period, such Protected Partner shall
be treated as continuing to own any OP Units which were subject to a Permitted Disposition unless and until there has been a sale,
exchange or other disposition of such OP Units by a permitted transferee which is not another Permitted Disposition.


Section 1.21“Person”
means an individual or a corporation, partnership, trust, unincorporated organization, association, limited liability company or
other entity.


Section 1.22“Protected Partner”
means: (i) each signatory on Schedule I attached hereto, as amended from time to time; (ii) any person who holds
OP Units and who acquired such OP Units from another Protected Partner in a transaction in which such person’s adjusted basis
in such OP Units, as determined for Federal income tax purposes, is determined, in whole or in part, by reference to the adjusted
basis of the other Protected Partner in such OP Units; and (iii) with respect to a Protected Partner that is Pass Through
Entity, and solely for purposes of computing the amount to be paid under Section 2.2 with respect to such Protected Partner, any
person who (y) holds an interest in such Protected Partner, either directly or through one or more Pass Through Entities,
and (z) is required to include all or a portion of the income of such Protected Partner in its own gross income.






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Section 1.23“Protected Property”
means that certain project commonly known as The Iron Horse Plaza in the City of Danville, County of Contra Costa, State of California,
with street address of 345 Railroad Avenue, Danville, California, and related personal property, and any property acquired in Exchange
for the Protected Property as set forth in Section 2.1(b).


Section 1.24Intentionally omitted


Section 1.25Intentionally omitted


Section 1.26Intentionally omitted


Section 1.27“Tax Protection Period”
means ten (10) years; provided, however, that such period shall end with respect to any Protected Partner to the
extent that such Partner owns less than fifty percent (50%) of the OP Units originally owned by the Protected Partner as of the
Closing Date, disregarding the sale, exchange or other disposition of any such OP Units sold, exchanged or otherwise disposed of
by the Protected Partner in a Permitted Disposition.


Section 1.28“Tax Protection Period
Transfer” has the meaning set forth in Section 2.1(a) of this Agreement.


Section 1.29“Transfer”
means any direct or indirect sale, exchange, transfer or other disposition, whether voluntary or involuntary.


Section 1.30“Treasury Regulations”
means the income tax regulations under the Code, whether such regulations are in proposed, temporary or final form, as such regulations
may be amended from time to time (including corresponding provisions of succeeding regulations).


ARTICLE II - TAX PROTECTIONS


Section 2.1Taxable Transfers.


(a)Unless the Partners’ Representative
expressly consents in writing to a Tax Protection Period Transfer, during the Tax Protection Period, the Operating Partnership
shall indemnify the Protected Partners as set forth in Section 2.2 if the Operating Partnership or any entity in which the Operating
Partnership holds a direct or indirect interest shall cause or permit: (i) any Transfer of all or any portion of the Protected
Property (including any interest in the Protected Property or in any entity owning, directly or indirectly, an interest in the
Protected Property, other than the Operating Partnership) in a transaction that results in the recognition of taxable income or
gain by any Protected Partner under Section 704(c) of the Code with respect to the Protected Property; or (ii) any Fundamental
Transaction that results in the recognition of taxable income or gain by any Protected Partner under Section 704(c) of the Code
with respect to the Protected Property (such a Transfer or Fundamental Transaction, a “Tax Protection Period Transfer”).






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(b)Section 2.1(a) shall not apply
to any Tax Protection Period Transfer of the Protected Property (including any interest therein or in the entity owning, directly
or indirectly, the Protected Property): (i) in a transaction in which no gain is required to be recognized by a Protected Partner
(an “Exchange”), including a transaction qualifying under Section 1031 or Section 721 (or any successor
statutes) of the Code; provided, however, that any property acquired by the Operating Partnership in the Exchange
shall remain subject to the provisions of this Article II in place of the exchanged Protected Property for the remainder of the
Tax Protection Period; (ii) as a result of the condemnation or other taking of the Protected Property by a governmental entity
in an eminent domain proceeding or otherwise, provided that the Operating Partnership shall use commercially reasonable
efforts to structure such disposition as either a tax-free like-kind exchange under Section 1031 or a tax-free reinvestment of
proceeds under Section 1033, provided that in no event shall the Operating Partnership be obligated to acquire or invest
in any property that it otherwise would not have acquired or invested in.


Section 2.2Indemnification for Taxable
Transfers.


(a)In the event of a Tax Protection Period
Transfer described in Section 2.1(a), each Protected Partner shall receive from the Operating Partnership an amount of cash
equal to the Make Whole Amount applicable to such Tax Protection Period Transfer. Any Make Whole Payments required under this Section
2.2(a) shall be made to each Protected Partner on or before April 15 of the year following the year in which the Tax Protection
Period Transfer took place; provided that, if the Protected Partner is required to make estimated tax payments that would
include such gain, the Operating Partnership shall make payment to such Protected Partner on or before the due date for such estimated
tax payment and such payment from the Operating Partnership shall be in an amount that corresponds to the estimated tax being paid
by the Protected Partner at such time.


(b)Notwithstanding any provision of this
Agreement to the contrary, the sole and exclusive rights and remedies of any Protected Partner under Section 2.1(a) shall
be a claim against the Operating Partnership for the Make Whole Amount, and no Protected Partner shall be entitled to pursue a
claim for specific performance of the covenants set forth in Section 2.1(a) or bring a claim against any person that acquires
the Protected Property from the Operating Partnership in violation of Section 2.1(a).


(c)The parties acknowledge that certain
of the Sellers and their direct or indirect owners may recognize gain in connection with the acquisition of the Property by the
Operating Partnership. Notwithstanding any provision hereof, any such gain recognized by the Sellers or their direct or indirect
owners, including any Protected Partner, in connection with such acquisition, or any gain resulting from any action taken by the
Company or the Operating Partnership that is not described in Section 2.1(a)(i) or (ii) hereof, shall not be subject to the indemnification
provisions of this Agreement and shall not be included in the calculation of Section 704(c) gain.


Section 2.3Section 704(c) Gains.
The initial amount of Section 704(c) gain allocable to each Protected Partner as of the Closing Date is set forth on Exhibit
A hereto. The parties acknowledge that the initial amount of such Section 704(c) gain may be adjusted over time as required
by Section 704(c) of the Code and the Regulations promulgated thereunder.


Section 2.4Intentionally omitted






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ARTICLE III - GENERAL PROVISIONS


Section 3.1Notices. All notices,
demands, declarations, consents, directions, approvals, instructions, requests and other communications required or permitted by
the terms of this Agreement shall be given in the same manner as in the OP Agreement.


Section 3.2Titles and Captions.
All Article or Section titles or captions in this Agreement are for convenience only. They shall not be deemed part of this
Agreement and in no way define, limit, extend or describe the scope or intent of any provisions hereof. Except as specifically
provided otherwise, references to “Articles” and “Sections” are to Articles and Sections of this Agreement.


Section 3.3Pronouns and Plurals.
Whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.


Section 3.4Further Action. The
parties shall execute and deliver all documents, provide all information and take or refrain from taking action as may be necessary
or appropriate to achieve the purposes of this Agreement.


Section 3.5Binding Effect. This
Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors,
legal representatives and permitted assigns.


Section 3.6Creditors. Other than
as expressly set forth herein, none of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by,
any creditor of the Operating Partnership.


Section 3.7Waiver. No failure by
any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise
any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach or any covenant, duty, agreement
or condition.


Section 3.8Counterparts. This Agreement
may be executed in counterparts, all of which together shall constitute one agreement binding on all of the parties hereto, notwithstanding
that all such parties are not signatories to the original or the same counterpart. Each party shall become bound by this Agreement
immediately upon affixing its signature hereto.


Section 3.9Applicable Law. This
Agreement shall be construed and enforced in accordance with and governed by the laws of the State of California, without regard
to the principles of conflicts of law.


Section 3.10Invalidity of Provisions.
If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect, the validity, legality or enforceability
of other remaining provisions contained herein shall not be affected thereby.






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Section 3.11Entire Agreement. This
Agreement contains the entire understanding and agreement among the Partners with respect to the subject matter hereof and amends,
restates and supersedes the OP Agreement and any other prior written or oral understandings or agreements among them with respect
thereto.


Section 3.12No Rights as Stockholders.
Nothing contained in this Agreement shall be construed as conferring upon the holders of the OP Units any rights whatsoever as
stockholders of the REIT, including, without limitation, any right to receive dividends or other distributions made to stockholders
of the REIT or to vote or to consent or to receive notice as stockholders in respect of any meeting of stockholders for the election
of directors of the REIT or any other matter.


Section 3.13Tax Advice and Cooperation.
Each party hereto acknowledges and agrees that it has not received and is not relying upon tax advice from any other party hereto,
and that it has and will continue to consult its own tax advisors. Each party hereto agrees to cooperate to the extent reasonably
requested by any other party in connection with the filing of any tax returns or any audit, litigation or other proceeding related
to taxes associated with the matters described herein, such cooperation shall include the retention and, upon request, provision
of records and information that are relevant to such matters, and making employees available on a mutually convenient basis to
provide such additional information as may reasonably be requested.


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IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the date first above written.


REIT:


RETAIL OPPORTUNITY INVESTMENTS CORP.,


a Maryland corporation


 


By: /s/ Michael B. Haines


Name:  Michael B. Haines


Title:    Chief Financial Officer


OPERATING PARTNERSHIP:


RETAIL OPPORTUNITY INVESTMENTS PARTNERSHIP, LP,


a Delaware limited partnership





	By:	Retail Opportunity Investments GP, LLC,
	 	a Delaware limited liability company,
	 	its general partner
	 	 	 
	 	By: 	Retail Opportunity Investments Corp.,
	 	 	a Maryland corporation
	 	 	its sole member
	 	 	 
	 	 	 
	 	 	By: /s/ Michael B. Haines
	 	 	Name: Michael B. Haines
	 	 	Title:   Chief Financial Officer










 





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PROTECTED PARTNERS:


 


 


 


/s/ Donald F. Gaube


Donald F. Gaube


 


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PROTECTED PARTNERS:


 


/s/ Suzanne Baumgartner                                                         


Suzanne Baumgartner, Trustee of the Frank K. Boscow


and Sue C. Boscow Revocable Trust U/A dated


December 12, 1996


 


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PROTECTED PARTNERS:


 


 


 


/s/ Janie S. Gaube                                                       


Janie S. Gaube, Trustee of the 2015 JSG Separate


Property Trust dated as of November 24, 2015


 


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PROTECTED PARTNERS:


 


 


 


/s/ Tom Boscow


Tom Boscow


 


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PROTECTED PARTNERS:


 


 


 


/s/ Leonard LaFrance                                                               


Leonard LaFrance, Trustee of the LaFrance Family Trust


dated January 6, 1993


 


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PROTECTED PARTNERS:


 


 


 


/s/ Deborah DeDomenico           


Deborah DeDomenico


 


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PROTECTED PARTNERS:


 


 


 


/s/ Dennis T. DeDomenico


Dennis T. DeDomenico


 


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PROTECTED PARTNERS:


 


 


 


/s/ Claudia DeDomenico


Claudia DeDomenico


 


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PROTECTED PARTNERS:


 


 


 


/s/ Lois DeDomenico                                              


Lois DeDomenico, Trustee of the Lois M.


DeDemenico QTIP Trust dated April 28, 1988


 


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PROTECTED PARTNERS:


 


 


 


/s/ Donna Holpainen


Donna Holpainen


 


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PROTECTED PARTNERS:


CDD&D MANAGEMENT, LLC


 


 


 


By: /s/ Dennis T. DeDomenico


Name: Dennis T. DeDomenico


Title: Member/Manager


 


By: /s/ Claudia DeDomenico


Name: Claudia DeDomenico


Title: Member/Manager


 


By: /s/ Donna Holpainen


Name: Donna Holpainen


Title: Member/Manager


 


By: /s/ Deborah DeDomenico


Name: Deborah DeDomenico


Title: Member/Manager


 


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PROTECTED PARTNERS:


 


Cesped 1992 Family Trust Dated February 26, 1992


 


 


 


By: /s/ Ricardo E. Cesped


Name: Ricardo E. Cesped


Title: Trustee


 


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PROTECTED PARTNERS:


 


 


/s/ David E. Cesped


David E. Cesped


 


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PROTECTED PARTNERS:


 


VIDANO 2005 FAMILY TRUST


 


 


 


By: /s/ Charles A. Vidano


Name: Charles A. Vidano


Title: Trustee


 


By: /s/ Michelle Vidano


Name: Michelle Vidano


Title: Trustee


 


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PROTECTED PARTNERS:


 


HOLPAINEN HOLDINGS, LLC


 


 


 


By: /s/ Dale Holpainen


Name: Dale Holpainen


Title: Manager/Member


 


 


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PROTECTED PARTNERS:


 


 


/s/ Sean Rhatigan


Sean Rhatigan


 


 


 


/s/ Ellen Rhatigan


Ellen Rhatigan


 


 





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PROTECTED PARTNERS:


 


 


/s/ Mark Engstrom


Mark Engstrom and Anne Engstrom, as co- trustees


of the Engstrom Family Trust dated May 21,2004


 


/s/ Anne Engstrom


Mark Engstrom and Anne Engstrom, as co- trustees


of the Engstrom Family Trust dated May 21,2004


 


 





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PROTECTED PARTNERS:


 


 


/s/ James G. Engstrom                                                                 


James G. Engstrom and Marsha Engstrom, as trustees


of the Jim And Marsha Engstrom Family 2006 Revocable


Trust established May 1, 2006


 


/s/ Marsha Engstrom                                                                 


James G. Engstrom and Marsha Engstrom, as trustees


of the Jim And Marsha Engstrom Family 2006 Revocable


Trust established May 1, 2006


 





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PROTECTED PARTNERS:


 


 


/s/ Eric A. Engstrom


Eric A. Engstrom


 


 


 


/s/ Sheila Engstrom


Sheila Engstrom


 


 





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PROTECTED PARTNERS:


 


 


/s/ Matthew K. Engstrom


Matthew K. Engstrom


 


 


 


/s/ Jennifer Engstrom


Jennifer Engstrom


 


 





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PROTECTED PARTNERS:


 


 


/s/ Richard A. Bruzzone


Richard A. Bruzzone


 


  


 


 


 


 


 





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SCHEDULE I 


PROTECTED PARTNERS


	 
	Donald F. Gaube
	Frank K. Boscow and Sue C. Boscow Revocable Trust U/A dated December 12, 1996
	2015 JSG Separate Property Trust dated as of November 24, 2015
	Thomas Boscow
	LaFrance Family Trust dated January 6, 1993
	Deborah DeDomenico
	Dennis T. DeDomenico
	Claudia DeDomenico
	Louis M. DeDomenico QTIP Trust dated April 28, 1988
	Donna Holpainen
	CDD&D Management, LLC
	Cesped 1992 Family Trust dated February 26, 1992
	David E. Cesped
	Vidano 2005 Family Trust
	Holpainen Holdings, LLC
	Sean Rhatigan & Ellen Rhatigan
	Engstrom Family Trust dated May 21, 2004
	Jim and Marsha Engstrom Family Revocable Trust Established May 1,2006
	Eric A. Engstrom and Sheila Engstrom
	Matthew K. Engstrom and Jennifer Engstrom
	Richard A. Bruzzone
	 
	 
	 
	 
	 
	 


 


 






    	 



    	 



    

EXHIBIT A


 


	Protected Partner	Federal 704(c) Gain	California 704(c) Gain
	Donald F. Gaube	$6,465,022	$6,073,124
	Frank K. Boscow and Sue C. Boscow Revocable Trust U/A dated December 12, 1996	$1,945,357	$1,827,456
	2015 JSG Separate Property Trust dated as of November 24, 2015	$346,042	$325,035
	Thomas Boscow	$346,042	$325,035
	LaFrance Family Trust dated January 6, 1993	$2,268,143	$2,112,999
	Deborah DeDomenico	$449,817	$419,049
	Dennis T. DeDomenico	$449,817	$419,049
	Claudia DeDomenico	$449,817	$419,049
	Louis M. DeDomenico QTIP Trust dated April 28, 1988	$449,817	$419,049
	Donna Holpainen	$449,817	$419,049
	CDD&D Management, LLC	$19,060	$17,756
	Cesped 1992 Family Trust dated February 26, 1992	$907,636	$845,584
	David E. Cesped	$226,978	$211,460
	Vidano 2005 Family Trust	$226,978	$211,460
	Holpainen Holdings, LLC	$453,638	$422,612
	Sean Rhatigan & Ellen Rhatigan	$226,819	$211,306
	Engstrom Family Trust dated May 21, 2004	$482,435	$481,000
	Jim and Marsha Engstrom Family Revocable Trust Established May 1,2006	$602,892	$601,099
	Eric A. Engstrom and Sheila Engstrom	$602,892	$601,099
	Matthew K. Engstrom and Jennifer Engstrom	$120,635	$120,277
	Richard A. Bruzzone	$1,993,268	$1,988,034
	Total:	$19,482,922	$18,470,581


 


The initial Section 704(c) gain allocated to each Protected
Partner as of the Closing Date is different for U.S. federal income tax purposes and California state income tax purposes. As
a result, the calculation provided in clause (i) of the definition of “Make Whole Amount” shall be applied separately
for U.S. federal income tax purposes and for California state income tax purposes (i.e., the applicable U.S. federal income tax
rate shall be applied to the amount of Section 704(c) gain recognized for U.S. federal income tax purposes, the applicable California
state income tax rate shall be applied to the amount of Section 704(c) gain recognized for California state income tax purposes,
and the two results shall be added together). Such calculations shall otherwise be done in a manner consistent with the definition
of “Make Whole Amount” and “Make Whole Tax Rate” and the other provisions in this Agreement.