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 (i) the product of (x) the aggregate federal state, and local tax on income or Medicare taxes (including Section 1411 of the Code) incurred by the Protected Partner or an Indirect Owner with respect the Protected Gain incurred with respect to the Gain Limitation Property that is allocable to (or borne by) such Protected Partner or Indirect Owner as a result of the Partnership’s breach of the obligations set forth in Article 2 and (y) the Protection Percentage plus (ii) an amount equal to the aggregate federal, state, and local tax on income or Medicare taxes (including Section 1411 of the Code) payable by the Protected Partner or an Indirect Owner as a result of the receipt of any payment required under this under this Section 3.1. The Partnership shall notify the Protected Partner and OPT in writing at least six months before the recognition of any Protected Gain if the Protection Percentage that would be applicable under this paragraph to the recognition of such Protected Gain is less than 100%. If the Partnership fails to provide such timely notice, the Protection Percentage shall be changed to 100% with regard to any such Protected Gain recognized from the Closing Date through the seventh anniversary of the Closing Date. 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 (but assuming limitation on full deductibility due to adjusted gross income levels), 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 (including any surtaxes or Medicare taxes under section 1411) 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). The Protected Partners shall not be entitled to indemnification from the REIT or the Partnership for any tax liabilities incurred as a result of a Final Determination of the Contribution being treated for federal income tax purposes as a taxable exchange rather than a tax-deferred transaction.

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 remedy shall be to receive from the Partnership, and the Partnership shall pay to such Protected Partner as damages, an amount equal to (i) the product of (x) the aggregate federal federal, state, and local tax on income or Medicare taxes (including Section 1411 of the Code) incurred by the Protected Partner or an Indirect Owner with respect to the Protected Gain incurred with respect to the Gain Limitation Property that is allocable to (or borne by) such Protected Partner under the Partnership Agreement as a result of the disposition of the Gain Limitation Property. In addition, the Partnership shall pay to the Protected Partner or Indirect Owner as a result of the Partnership’s breach of the obligations set forth in Article 2 and (y) the Protection Percentage plus (ii) an amount equal to the aggregate federal, state, and local tax on income or Medicare taxes (including Section 1411 of the Code) payable by the Protected Partner or an Indirect Owner as a result of the receipt of any payment required under this under this Section 3.1. The Partnership shall notify the Protected Partner and OPT in writing at least six months before the recognition of any Protected Gain if the Protection Percentage that would be applicable under this paragraph to the recognition of such Protected Gain is less than 100%. If the Partnership fails to provide such timely notice, the Protection Percentage shall be changed to 100% with regard to any such Protected Gain recognized from the Closing Date through the seventh anniversary of the Closing Date4.1. 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 (but assuming limitation on full deductibility due to adjusted gross income levels)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 (including any surtaxes or Medicare taxes under section 1411plus the tax rate on net investment income, if applicable) 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). The Protected Partners shall not be entitled to indemnification from the REIT or the Partnership for any tax liabilities incurred as a result of a Final Determination of the Contribution being treated for federal income tax purposes as a taxable exchange rather than a tax-deferred transaction.

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 (i) the product of (x) the aggregate federal state, and local tax on income or Medicare taxes (including Section 1411 of the Code) incurred by the Protected Partner or an Indirect Owner with respect the Protected Gain incurred with respect to the Gain Limitation Property that is allocable to (or borne by) such Protected Partner or Indirect Owner as a result of the Partnership’s breach of the obligations set forth in Article 2 and (y) the Protection Percentage plus (ii) an amount equal to the aggregate federal, state, and local tax on income or Medicare taxes (including Section 1411 of the Code) payable by the Protected Partner or an Indirect Owner as a result of the receipt of any payment required under this under this Section 3.1. The Partnership shall notify the Protected Partner and OPT in writing at least six months before the recognition of any Protected Gain if the Protection Percentage that would be applicable under this paragraph to the recognition of such Protected Gain is less than 100%. If the Partnership fails to provide such timely notice, the Protection Percentage shall be changed to 100% with regard to any such Protected Gain recognized from the Closing Date through the seventh anniversary of the Closing Date. 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 (but assuming limitation on full deductibility due to adjusted gross income levels), 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 (including any surtaxes or Medicare taxes under section 1411) 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). The Protected Partners shall not be entitled to indemnification from the REIT or the Partnership for any tax liabilities incurred as a result of a Final Determination of the Contribution being treated for federal income tax purposes as a taxable exchange rather than a tax-deferred transaction. The provisions of this Section 3.1 shall not apply to a failure to provide the notice described in clause (1) of Section 2.1.3(b).

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 sum of (i) the product of (x) the aggregate federal state, and local tax on income or Medicare taxes (including Section 1411 of the Code) incurred by the Protected Partner or an Indirect Owner of such Protected Partner with respect to the Protected Gain incurred with respect to the applicable Gain Limitation Property that is allocable to (or borne by) such Protected Partner or Indirect Owner as a result of the Partnership’s breach of the obligations set forth in Article 2 and (y) the Protection Percentage plus (ii) an amount equal to the aggregate federal, state, and local tax on income or Medicare taxes (including Section 1411 of the Code) payable by the Protected Partner or an Indirect Owner as a result of the receipt of any payment required under this under this Section 3.1. The Partnership shall notify the Protected Partner and OPT in writing at least six months before the recognition of any Protected Gain if the Protection Percentage that would be applicable under this paragraph to the recognition of such Protected Gain is less than 100%. If the Partnership fails to provide such timely notice, the Protection Percentage shall be changed to 100% with regard to any such Protected Gain recognized from the Closing Date through the seventh anniversary of the Closing Date. 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 (but assuming limitation on full deductibility due to adjusted gross income levels), 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 (including any surtaxes or Medicare taxes under section 1411Section 1411 of the Code) 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). The Protected Partners shall not be entitled to indemnification from the REIT or the Partnership for any tax liabilities incurred as a result of a Final Determination of the any Contribution being treated for federal income tax purposes as a taxable exchange rather than a tax-deferred transaction. The provisions of this Section 3.1 shall not apply to a failure to provide the notice described in clause (1) of Section 2.1(c)(ii)(B).

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 shall be to receive from the Partnership, and the Partnership shall pay to such Protected Partner as damages, an amount equal to (i) the product of (x) the aggregate federal state, and local tax on income or Medicare taxes (including Section 1411 of the Code) incurred by the Protected Partner or an Indirect Owner with respect the Protected Gain incurred with respect to the Gain Limitation Property that is allocable to (or borne by) such Protected Partner or Indirect Owner as a result of the Partnership’s breach of the obligations set forth in Article 2 and (y) the Protection Percentage plus (ii) an amount equal to the aggregate federal, state, state and local tax on income or Medicare taxes (including Section 1411 of the Code) payable incurred by the Protected Partner or an Indirect Owner as a result of the receipt of any payment required under this under this Section 3.1. The Partnership shall notify the income or gain allocated to, or otherwise recognized by, such Protected Partner and OPT in writing at least six months before the recognition of any Protected Gain if the Protection Percentage that would be applicable under this paragraph with respect to the recognition its Units by reason of such Protected Gain is less than 100%. If the Partnership fails to provide such timely notice, the Protection Percentage shall be changed to 100% with regard to any such Protected Gain recognized from the Closing Date through the seventh anniversary of the Closing Datebreach. 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 (but assuming limitation on full deductibility due to adjusted gross income levels)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 (including any surtaxes or Medicare taxes under section 1411) 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 Partner(or Indirect Owner), either in the current year, in earlier years, or in later years). The Protected Partners shall not be entitled to indemnification from the REIT or the Partnership for any tax liabilities incurred as a result of a Final Determination of the Contribution being treated for federal income tax purposes as a taxable exchange rather than a tax-deferred transaction.

Monetary Damages. In the event that the Partnership or a Subsidiary breaches its obligations set forth in Article 2 3 with respect to a Protected PartnerPartner (or Indirect Owner thereof), the Protected Partner’s (and Indirect Owner’s) sole right shall be to receive from the Partnership, and the Partnership shall pay to such Protected Partner (or Indirect Owner thereof) as damages, an amount equal to (i) the product of (x) the aggregate federal state, and local tax on income or Medicare taxes (including Section 1411 of the Code) incurred by the Protected Partner or an Indirect Owner with respect the Protected Gain incurred with respect to the Gain Limitation Property that is allocable to (or borne by) such Protected Partner or Indirect Owner as a result of the Partnership’s breach of the obligations set forth in Article 2 and (y) the Protection Percentage plus (ii) an amount equal to the aggregate federal, state, state and local tax on income or Medicare taxes (including Section 1411 of the Code) payable incurred by the Protected Partner (or an its Indirect Owner Owners) as a result of the receipt income or gain allocated to, or otherwise recognized by, such Protected Partner (or its Indirect Owners) by reason of any such breach; plus an additional amount so that, after the payment required under this under by such Protected Partner (or Indirect Owner thereof) of all taxes on amounts received pursuant to this Section 3.1. The Partnership shall notify the Protected Partner and OPT in writing at least six months before the recognition of 4.1 (including any Protected Gain if the Protection Percentage that would be applicable under this paragraph to the recognition tax liability incurred as a result of such Protected Gain is less than 100%. If the Partnership fails to provide Partner’s receipt of such timely noticeindemnity payment), the Protection Percentage shall be changed to 100% with regard to any such Protected Gain recognized from the Closing Date through the seventh anniversary Partner (or Indirect Owner thereof) retains an amount equal to its total tax liability incurred as a result of the Closing Datesuch breach. For purposes of computing the amount of federal, state, and local income taxes required to be paid by a Protected Partner (or an Indirect OwnerOwner thereof), (i) any deduction for state income taxes payable as a result thereof actually allowed in shall be treated as fully deductible for purposes of computing federal income taxes shall be taken into account (but assuming limitation on full deductibility due to adjusted gross income levels)taxes, 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 (including any surtaxes or Medicare taxes under section 1411) 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). The Protected Partners shall not be entitled to indemnification from the REIT or the Partnership for any tax liabilities incurred as a result of a Final Determination of the Contribution being treated for federal income tax purposes as a taxable exchange rather than a tax-deferred transaction.

Monetary Damages. (a) In the event that the Partnership breaches its obligations set forth in Article 2 Section 2.1 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 (i) the product of (x) the aggregate federal state, and local tax on income or Medicare taxes (including Section 1411 of the Code) incurred by the Protected Partner or an Indirect Owner with respect to the Protected Gain incurred with respect to the Gain Limitation Property that is allocable to (or borne by) such Protected Partner or Indirect Owner under the Partnership Agreement as a result of the Partnership’s breach disposition of the obligations set forth in Article 2 and (y) the Protection Percentage plus (ii) an amount equal to the aggregate federal, state, and local tax on income or Medicare taxes (including Section 1411 of the Code) payable by the Protected Partner or an Indirect Owner as a result of the receipt of any payment required under this under this Section 3.1. The Partnership shall notify the Protected Partner and OPT in writing at least six months before the recognition of any Protected Gain if the Protection Percentage that would be applicable under this paragraph to the recognition of such Protected Gain is less than 100%. If the Partnership fails to provide such timely notice, the Protection Percentage shall be changed to 100% with regard to any such Protected Gain recognized from the Closing Date through the seventh anniversary of the Closing DateLimitation Property. 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 (but assuming limitation on full deductibility due to adjusted gross income levels)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 (including any surtaxes or Medicare taxes under section 1411) 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 Partner(or Indirect Owner), either in the current year, in earlier years, or in later years). The Protected Partners shall not be entitled to indemnification from the REIT or the Partnership for any tax liabilities incurred as a result of a Final Determination of the Contribution being treated for federal income tax purposes as a taxable exchange rather than a tax-deferred transaction.