Common use of Exceptions Where No Gain Recognized Clause in Contracts

Exceptions Where No Gain Recognized. Notwithstanding the restrictions set forth in Section 2.1: (i) The Operating Partnership may dispose of any Protected Property (or an interest therein) if and to the extent that such disposition qualifies as a like-kind exchange under Section 1031 of the Code, an involuntary conversion under Section 1033 of the Code, or other transaction (including, but not limited to, a contribution of property to any entity that qualifies for the non-recognition of gain under Section 721 or Section 351 of the Code, or a merger or consolidation of the Operating Partnership with or into another entity that qualifies for taxation as a “partnership” for U.S. federal income tax purposes (a “Successor Partnership”)) that does not result (in the year of such disposition or in a later year within the Tax Protection Period) in the recognition of any Protected Gain to a Protected Partner. In further clarification thereof, in the case of a Section 1031 like-kind exchange, if such exchange is with a “related person” within the meaning of Section 1031(f)(3) of the Code, any direct or indirect disposition by such related person of the Protected Property or any other transaction prior to the expiration of the two (2) year period following such exchange and within the Tax Protection Period that would cause Section 1031(f)(1) of the Code to apply with respect to such Protected Property (including by reason of the application of Section 1031(f)(4) of the Code) and a result of which a Protected Partner recognizes Protected Gain shall be considered a violation of Section 2.1 by the Operating Partnership. (ii) The Operating Partnership shall not be obligated to indemnify any Protected Partner pursuant to the terms of this Agreement with respect to, in connection with or arising in any way as a result of (A) the treatment or Tax positions taken by the Initial Protected Partners prior to the date of the Merger, or (B) changes in Tax law, including retroactive Tax law changes, made or enacted after the Effective Date.

Exceptions Where No Gain Recognized. Notwithstanding the restrictions set forth in Section 2.1: (i) The Operating , the Partnership may dispose of any Protected Property (or an interest therein) if and to the extent that such disposition qualifies as a like-kind exchange under Section 1031 of the Code, or an involuntary conversion under Section 1033 of the Code, or other transaction (including, but not limited to, a contribution of property to any entity that qualifies for the non-recognition of gain under Section 721 or Section 351 of the Code, or a merger or consolidation of the Operating Partnership with or into another entity that qualifies for taxation as a “partnership” for U.S. federal income tax purposes (a “Successor Partnership”)) that that, does not result (in the year of such disposition or in a later year within the Tax Protection Period) in the recognition of any Protected Gain to a Protected Partner. In further clarification thereof, : (i) in the case of a Section 1031 like-kind exchange, if such exchange is with a “related personparty” within the meaning of Section 1031(f)(3) of the Code, any direct or indirect disposition by such related person party of the Protected Property or any other transaction prior to the expiration of the two (2) year period following such exchange and within the Tax Protection Period that would cause Section 1031(f)(1) of the Code to apply with respect to such Protected Property (including by reason of the application of Section 1031(f)(4) of the Code) and a result of which is to cause a Protected Partner recognizes to recognize Protected Gain shall be considered a violation of Section 2.1 by the Operating Partnership.; and (ii) The Operating in the event that at the time of the exchange or other disposition the Protected Property is secured, directly or indirectly, by indebtedness that is guaranteed by a Partner Guarantor (or for which a Protected Partner otherwise has personal liability) and the transferee is not a “pass-through” Subsidiary of the Partnership that both is 100% owned, directly or indirectly, by the Partnership and is and will continue to be under the legal control of the Partnership, (a) in the Partnership’s sole discretion, either (I) such indebtedness shall be repaid in full or (II) the Partnership shall not be obligated to indemnify any Protected Partner pursuant to obtain from the terms of this Agreement lenders with respect toto such indebtedness a full and complete release of liability for each of the Protected Partners that has guaranteed, or otherwise has liability for, such indebtedness and (b) if such indebtedness is a Guaranteed Debt and the Tax Protection Period with respect to Article 3 shall not have expired, the Partnership shall comply with its covenants set forth in connection Article 3 below with or arising in any way respect to such Guaranteed Debt and the Partner Guarantors that are considered to have liability for such Guaranteed Debt (determined under Section 3.5 treating such events as a result of (A) the treatment or Tax positions taken by the Initial Protected Partners prior to the date repayment of the Merger, or (B) changes in Tax law, including retroactive Tax law changes, made or enacted after the Effective DateGuaranteed Debt).

Exceptions Where No Gain Recognized. Notwithstanding the restrictions set forth in Section 2.1: (i) The Operating , the Partnership may dispose of any Protected Property (or an interest therein) if and to the extent that such disposition qualifies as a like-kind exchange under Section 1031 of the Code, or an involuntary conversion under Section 1033 of the Code, or other transaction (including, but not limited to, a contribution of property to any entity that qualifies for the non-recognition of gain under Section 721 or Section 351 of the Code, or a merger or consolidation of the Operating Partnership with or into another entity that qualifies for taxation as a “partnership” for U.S. federal income tax purposes (a “Successor Partnership”)) that that, does not result (in the year of such disposition or in a later year within the Tax Protection Period) in the recognition of any Protected Gain to a Protected Partner. In further clarification thereof, : (i) in the case of a Section 1031 like-kind exchange, if such exchange is with a “related personparty” within the meaning of Section 1031(f)(3) of the Code, any direct or indirect disposition by such related person party of the Protected Property or any other transaction prior to the expiration of the two (2) year period following such exchange and within the Tax Protection Period that would cause Section 1031(f)(1) of the Code to apply with respect to such Protected Property (including by reason of the application of Section 1031(f)(4) of the Code) and a result of which is to cause a Protected Partner recognizes to recognize Protected Gain shall be considered a violation of Section 2.1 by the Operating Partnership.; and (ii) The Operating in the event that at the time of the exchange or other disposition the Protected Property is secured, directly or indirectly, by indebtedness that is guaranteed by a Partner Guarantor (or for which a Protected Partner otherwise has personal liability) and the transferee is not a "pass-through" Subsidiary of the Partnership that both is 100% owned, directly or indirectly, by the Partnership and is and will continue to be under the legal control of the Partnership, (a) in the Partnership's sole discretion, either (I) such indebtedness shall be repaid in full or (II) the Partnership shall not be obligated to indemnify any Protected Partner pursuant to obtain from the terms of this Agreement lenders with respect toto such indebtedness a full and complete release of liability for each of the Protected Partners that has guaranteed, or otherwise has liability for, such indebtedness and (b) if such indebtedness is a Guaranteed Debt and the Tax Protection Period with respect to Article 3 shall not have expired, the Partnership shall comply with its covenants set forth in connection Article 3 below with or arising in any way respect to such Guaranteed Debt and the Partner Guarantors that are considered to have liability for such Guaranteed Debt (determined under Section 3.5 treating such events as a result of (A) the treatment or Tax positions taken by the Initial Protected Partners prior to the date repayment of the Merger, or (B) changes in Tax law, including retroactive Tax law changes, made or enacted after the Effective DateGuaranteed Debt).