Common use of Monetary Damages Clause in Contracts

Monetary Damages. In the event that the Partnership breaches its obligations set forth in Article 2 with respect to a Protected Partner the Protected Partner’s sole right shall be to receive from the Partnership, and the Partnership shall pay to such Protected Partner as damages, an amount equal to the aggregate federal, state and local income taxes incurred by the Protected Partner or an Indirect Owner as a result of the income or gain allocated to, or otherwise recognized by, such Protected Partner with respect to its Units by reason of such breach. For the avoidance of doubt, so long as the Partnership provides the opportunity to a Protected Partner to enter into a Bottom Guarantee or Deficit Restoration Obligation pursuant to the forms attached hereto or otherwise agreed to by the parties and the Partnership uses commercially reasonable efforts to maintain outstanding the relevant partnership liabilities in accordance with Article 2, the Partnership shall have no liability pursuant to this Section 3.1 in the event it is determined that a Protected Partner has not been specially allocated for purposes of Section 752 of the Code an amount of partnership liabilities equal to such Protected Partner’s Liability Amount or is not treated as receiving a special allocation of partnership liabilities for purposes of Section 465 of the Code that increases such Protected Partner’s “at risk” amount by an amount equal to such Protected Partner’s Liability Amount. Furthermore, the Partnership shall have no liability pursuant to this Section 3.1 if the Partnership merges into another entity treated as a partnership for federal income tax purposes or the Protected Partner accepts an offer to exchange its OP Units for equity interests in another entity treated as a partnership for federal income tax purposes so long as, in either case, such successor entity assumes or agrees to assume the Partnership’s obligations pursuant to this Agreement. For purposes of computing the amount of federal, state, and local income taxes required to be paid by a Protected Partner (or Indirect Owner), (i) any deduction for state income taxes payable as a result thereof actually allowed in computing federal income taxes shall be taken into account, and (ii) a Protected Partner’s (or Indirect Owner’s) tax liability shall be computed using the highest federal, state and local marginal income tax rates that would be applicable to such Protected Partner’s (or Indirect Owner’s) taxable income (taking into account the character and type of such income or gain) for the year with respect to which the taxes must be paid, without regard to any deductions, losses or credits that may be available to such Protected Partner (or Indirect Owner) that would reduce or offset its actual taxable income or actual tax liability if such deductions, losses or credits could be utilized by the Protected Partner (or Indirect Owner) to offset other income, gain or taxes of the Protected Partner (or Indirect Owner), either in the current year, in earlier years, or in later years).

Monetary Damages. In the event that the Partnership breaches its obligations set forth in Article 2 2, with respect to a Protected Partner Partner, the Protected Partner’s sole right remedy shall be to receive from the Partnership, and the Partnership shall pay to such Protected Partner as damages, an amount equal to to: (a) the aggregate federal, state state, and local income taxes incurred by the Protected Partner or an Indirect Owner with respect to the Protected Gain that is allocable to such Protected Partner under the Partnership Agreement as a result of the disposition of the Gain Limitation Property, plus (b) an amount equal to the aggregate federal, state, and local income or gain allocated to, or otherwise recognized by, such taxes payable by the Protected Partner with respect to its Units by reason or an Indirect Owner as a result of such breachthe receipt of any payment required under this Section 3.1. For the avoidance of doubt, so long as the Partnership provides the opportunity to a Protected Partner to enter into a Bottom Guarantee or Deficit Restoration Obligation pursuant to the forms attached hereto or otherwise agreed to by the parties and the Partnership uses commercially reasonable efforts to maintain outstanding the relevant partnership liabilities in accordance with Article 2, the Partnership shall have no liability pursuant to this Section 3.1 in the event it is determined that a Protected Partner has not been specially allocated for purposes of Section 752 of the Code an amount of partnership liabilities equal to such Protected Partner’s Liability Amount or is not treated as receiving a special allocation of partnership liabilities for purposes of Section 465 of the Code that increases such Protected Partner’s “at risk” amount by an amount equal to such Protected Partner’s Liability Amount. Furthermore, the Partnership shall have no liability pursuant to this Section 3.1 if the Partnership merges into another entity treated as a partnership for federal income tax purposes or the Protected Partner accepts an offer to exchange its OP Units for equity interests in another entity treated as a partnership for federal income tax purposes so long as, in either case, such successor entity assumes or agrees to assume the Partnership’s obligations pursuant to this Agreement. For purposes of computing the amount of federal, state, and local income taxes required to be paid by a Protected Partner (or Indirect Owner), (ib) any deduction for state income taxes payable as a result thereof actually allowed in computing federal income taxes shall be taken into account, and (iic) a Protected Partner’s (or Indirect Owner’s) tax liability shall be computed using the highest federal, state and local marginal income tax rates that would be applicable to such Protected Partner’s (or Indirect Owner’s) taxable income (taking into account the character and type of such income or gain) for the year with respect to which the taxes must be paid, without regard to any deductions, losses or credits that may be available to such Protected Partner (or Indirect Owner) that would reduce or offset its actual taxable income or actual tax liability if such deductions, losses or credits could be utilized by the Protected Partner (or Indirect Owner) to offset other income, gain or taxes of the Protected Partner (or Indirect Owner), either in the current year, in earlier years, or in later years).