Common use of 1031 Exchanges Clause in Contracts

1031 Exchanges. Purchaser agrees that, at Seller’s sole election, this transaction or any portion thereof may be structured as one or more separate exchanges (including deferred exchanges) of like-kind properties under Section 1031 of the Code, and the regulations and proposed regulations thereunder, provided that (i) Seller shall effect each exchange through (A) an assignment of its or their rights under this Agreement (in form and substance reasonably satisfactory to Purchaser and Seller) to a “qualified intermediary” (within the meaning of Treasury Regulations Section 1.1031(k)-1(g)(4)(iii)), and/or (B) the transfer of the Shopping Center to an “exchange accommodation titleholder” within the meaning of Revenue Procedure 2000-37, 0000-0 X.X. 000, (xx) the Closing shall not be delayed by reason of any exchange nor shall the consummation or accomplishment of any exchange be a condition precedent or condition subsequent to Seller’s obligations under this Agreement; (iii) Purchaser shall not be required to acquire or hold title to any real property for purposes of consummating any such exchange; (iv) Purchaser shall not be required to take an assignment of the purchase agreement for the replacement property; (v) Seller shall pay any additional costs that would not otherwise have been incurred by Purchaser had Seller not consummated the sale through an exchange; and (vi) Seller shall, and hereby does, fully indemnify, defend, and hold harmless Purchaser from, any loss, cost, damages, liability, claim, proceeding, cause of action, or expense (including reasonable attorneys’ fees, expenses, and disbursements) of any kind or nature whatsoever arising out of, connected with, or in any manner related to such exchange that would not otherwise have been incurred by the Purchaser had Seller not consummated such sale through an exchange under Section 1031 of the Code and such obligation shall survive the Closing indefinitely. Purchaser shall not by this Agreement or acquiescence to any exchange (a) have its rights under this Agreement affected or diminished in any manner or (b) be responsible for compliance with, or be deemed to have warranted to Seller that such exchange in fact complies with, Section 1031 of the Code. Purchaser agrees that if Seller wishes to make such election, it must do so prior to the Closing Date. If Seller so elects, the Purchaser shall reasonably cooperate at Seller’s sole expense, including amending this agreement as may be helpful or necessary to facilitate such exchanges.

1031 Exchanges. Purchaser agrees that, at Seller’s sole election, this transaction or any portion thereof Seller and Buyer acknowledge and agree that the purchase and sale of the Property may be structured as one or more separate exchanges (including deferred exchanges) part of likea tax-kind properties under Section 1031 of the Code, and the regulations and proposed regulations thereunder, provided that (i) Seller shall effect each exchange through (A) an assignment of its or their rights under this Agreement (in form and substance reasonably satisfactory to Purchaser and Seller) to a “qualified intermediary” (within the meaning of Treasury Regulations Section 1.1031(k)-1(g)(4)(iii)), and/or (B) the transfer of the Shopping Center to an “exchange accommodation titleholder” within the meaning of Revenue Procedure 2000-37, 0000-0 X.X. 000, (xx) the Closing shall not be delayed by reason of any exchange nor shall the consummation or accomplishment of any exchange be a condition precedent or condition subsequent to Seller’s obligations under this Agreement; (iii) Purchaser shall not be required to acquire or hold title to any real property for purposes of consummating any such exchange; (iv) Purchaser shall not be required to take an assignment of the purchase agreement for the replacement property; (v) Seller shall pay any additional costs that would not otherwise have been incurred by Purchaser had Seller not consummated the sale through an exchange; and (vi) Seller shall, and hereby does, fully indemnify, defend, and hold harmless Purchaser from, any loss, cost, damages, liability, claim, proceeding, cause of action, or expense (including reasonable attorneys’ fees, expenses, and disbursements) of any kind or nature whatsoever arising out of, connected with, or in any manner related to such exchange that would not otherwise have been incurred by the Purchaser had Seller not consummated such sale through an free exchange under Section 1031 of the Code and such obligation shall survive ("Exchange"), for either Buyer or Seller. Each party hereby agrees to take all reasonable steps on or before the Closing indefinitely. Purchaser shall not Date to facilitate such Exchange if requested by this Agreement or acquiescence to any exchange the other party, provided that (a) have no party making such accommodation shall be required to acquire any substitute property, (b) such Exchange shall not affect the representations, warranties, liabilities and obligations of the parties to each other under this Agreement, (c) no party making such accommodation shall incur any additional cost, expense or liability in connection with such Exchange (other than expenses of reviewing and executing documents required in connection with such Exchange ), and (d) no dates in this Agreement will be extended as a result thereof. Notwithstanding anything to the contrary contained in the foregoing, if Seller so elects to close the transfer of the Property as an Exchange, then (i) Seller, at its sole option, may delegate its obligations to transfer the Property under this Agreement, and may assign its rights to receive the Purchase Price from Buyer, to a deferred exchange intermediary (an "Intermediary") or to an exchange accommodation titleholder, as the case may be; (ii) such delegation and assignment shall in no way reduce, modify or otherwise affect the obligations of Seller pursuant to this Agreement; (iii) Seller shall remain fully liable for its obligations under this Agreement affected as if such delegation and assignment shall not have taken place; (iv) Intermediary or diminished in any manner or exchange accommodation titleholder, as the case may be, shall have no liability to Buyer; (bv) be responsible for compliance with, or be deemed to have warranted to Seller that such exchange in fact complies with, Section 1031 the closing of the Codetransfer of the Property to Buyer shall be undertaken by direct deed from Seller (or, if applicable, from other affiliates of Seller whom Seller will cause to execute such deeds) to Buyer or to exchange accommodation titleholder, as the case may be; and (vi) Seller shall indemnify, protect, defend and hold harmless Buyer from and against any and all liability, costs and expenses arising from and out of such Exchange by Seller. Purchaser agrees that if Seller wishes to make such election, it must do so prior Notwithstanding anything to the Closing Datecontrary contained in the foregoing, if Buyer so elects to close the acquisition of the Property as an Exchange ,then (A) Buyer, at its sole option, may delegate its obligations to acquire the Property under this Agreement, and may assign its rights to receive the Property from Seller, to an Intermediary or to an exchange accommodation titleholder, as the case may be; (B) such delegation and assignment shall in no way reduce, modify or otherwise affect the obligations of Buyer pursuant to this Agreement; (C) Buyer shall remain fully liable for its obligations under this Agreement as if such delegation and assignment shall not have taken place; (D) Intermediary or exchange accommodation titleholder, as the case may be, shall have no liability to Seller; (E) the closing of the acquisition of the Property by Buyer or the exchange accommodation titleholder, as the case may be, shall be undertaken by direct deed from Seller (or, if applicable, from other affiliates of Seller whom Seller will cause to execute such deeds) to Buyer or to exchange accommodation titleholder, as the case may be; and (F) Buyer shall indemnify, protect, defend and hold harmless Seller from and against any and all liability, costs and expenses arising from and out of such Exchange by Buyer. If Seller so elects, No party participating in an Exchange transaction pursuant to this Section 10.13 shall make any representation or warranty to the Purchaser shall reasonably cooperate at Seller’s sole expense, including amending this agreement as may be helpful or necessary to facilitate other party concerning the tax treatment of such exchanges.transaction 3990 Bxxxxxx -26- Purchase and Sale Agreement

1031 Exchanges. Purchaser agrees that, at one or more Seller’s sole election, this transaction or any portion thereof may be structured as one or more separate exchanges (including deferred exchanges) of like-kind properties under Section 1031 of the Code, and the regulations and proposed regulations thereunder, provided that (i) Seller the applicable Seller(s) shall effect each exchange through (A) an assignment of its or their rights under this Agreement (in form and substance reasonably satisfactory to Purchaser and SellerSeller of the applicable Shopping Center) to a “qualified intermediary” (within the meaning of Treasury Regulations Section 1.1031(k)-1(g)(4)(iii)), which assignment shall be executed and delivered on or before the Closing, provided that no Seller’s rights to the Deposit hereunder shall be permitted to be assigned to a “qualified intermediary” and/or (B) the transfer of one or more of the Shopping Center Centers to an “exchange accommodation titleholder” within the meaning of Revenue Procedure 2000-37, 0000-0 X.X. 000, (xx) the Closing shall not be delayed by reason of any exchange nor shall the consummation or accomplishment of any exchange be a condition precedent or condition subsequent to Seller’s Sellers’ obligations under this Agreement; (iii) Purchaser shall not be required to acquire or hold title to any real property for purposes of consummating any such exchange; (iv) Purchaser shall not be required to take an assignment of the purchase agreement for the replacement property; (v) Seller Sellers shall pay any additional costs that would not otherwise have been incurred by Purchaser had Seller the applicable Seller(s) not consummated the sale through an exchange; and (vi) Seller the applicable Seller(s) shall, and hereby does, fully indemnify, defend, and hold harmless Purchaser from, any loss, cost, damages, liability, claim, proceeding, cause of action, or expense (including reasonable attorneys’ fees, expenses, and disbursements) of any kind or nature whatsoever arising out of, connected with, or in any manner related to such exchange that would not otherwise have been incurred by the Purchaser had Seller the applicable Seller(s) not consummated such sale through an exchange under Section 1031 of the Code and such obligation shall survive the Closing indefinitely. Purchaser shall not by this Agreement or acquiescence to any exchange (a) have its rights under this Agreement affected or diminished in any manner or (b) be responsible for compliance with, or be deemed to have warranted to Seller any Seller(s) that such exchange in fact complies with, Section 1031 of the Code. Purchaser agrees that if Seller any Seller(s) wishes to make such election, it must do so prior to the Closing Date. If Seller any Seller(s) so elects, the Purchaser shall reasonably cooperate at Sellersuch Seller(s)’s sole expense, including amending this agreement as may be helpful or necessary to facilitate such exchanges.

1031 Exchanges. Purchaser agrees that(a) Buyer hereby acknowledges that Seller may utilize the tax laws of the United States, at Seller’s sole electionas promulgated and enforced by the Internal Revenue Service, this transaction or any portion thereof may be structured as one or more separate exchanges to later effect a “like kind” tax deferred exchange under Internal Revenue Code (including deferred exchangesI.R.C.) of like-kind properties under Section 1031 in order to reduce, mitigate or otherwise defer the tax liability to Seller as a consequence of the Codesale and acquisition contemplated hereby. Buyer agrees to cooperate with Seller, and at the regulations instruction of tax counsel of Seller, to assist in the accomplishment of any such tax planning and proposed regulations thereunder1031 “like kind” exchange; provided, provided that however, (i) Seller shall effect each exchange through (A) an assignment of its or their rights under this Agreement (in form and substance reasonably satisfactory to Purchaser and Seller) to a “qualified intermediary” (within the meaning of Treasury Regulations Section 1.1031(k)-1(g)(4)(iii)), and/or (B) the transfer of the Shopping Center to an “exchange accommodation titleholder” within the meaning of Revenue Procedure 2000-37, 0000-0 X.X. 000, (xx) the Closing shall not be delayed by reason of any exchange nor shall the consummation or accomplishment of any exchange be a condition precedent or condition subsequent to Seller’s obligations under this Agreement; (iii) Purchaser Buyer shall not be required to acquire or hold take title to any real property for purposes of consummating any such exchange; exchange property, (ivii) Purchaser Buyer shall not be required to take an assignment incur any expense or liability whatsoever in connection with the exchange, including, without limitation, any obligation for the payment of any escrow, title, brokerage or other costs including attorneys’ fees incurred with respect to the exchange, (iii) Seller shall not be released from any of its obligations, warranties or representations set forth in this Agreement or from liability for any prior or subsequent default under this Agreement, which obligations shall continue as the obligations of a principal and not of a surety or guarantor, (iv) Seller shall give Buyer at least five (5) days prior notice of the purchase agreement for proposed changes required to effect such exchange and the replacement property; identity of any party to be substituted in the escrow, (v) Seller shall pay any be responsible for preparing all additional costs that would not otherwise have been incurred agreements, documents and escrow instructions (collectively, the “Exchange Documents”) required by Purchaser had Seller not consummated the sale through an exchange; , at its sole cost and expense, (vi) Seller shallshall be responsible for making all determinations as to the legal sufficiency, tax considerations and other considerations relating to the proposed exchange, the Exchange Documents and the transactions contemplated thereby, and hereby does, fully indemnify, defend, and hold harmless Purchaser from, any loss, cost, damages, liability, claim, proceeding, cause of action, or expense (including reasonable attorneys’ fees, expenses, and disbursements) of any kind or nature whatsoever arising out of, connected withSeller shall in no event be responsible for, or in any manner related way be deemed to warrant or represent any tax or other consequences of the exchange transaction, and (vii) the election to effect such exchange that would not otherwise have been incurred by the Purchaser had Seller not consummated such sale through an exchange under Section 1031 shall not delay or postpone the Closing of the transaction as defined herein. In connection with any “like kind” exchange, Buyer agrees that Seller’s rights, interests and obligations under this Agreement may be assigned to a “qualified intermediary” as such term is defined in the regulations issued under Internal Revenue Code and Section 1031; provided, however, any such obligation shall survive the Closing indefinitely. Purchaser assignment shall not by release Seller from any of its obligations, warranties or representations set forth in this Agreement or acquiescence to from liability for any exchange (a) have its rights prior or subsequent default under this Agreement affected Agreement, which obligations shall continue as obligations of a principal and not a surety or diminished in any manner or (b) be responsible for compliance with, or be deemed to have warranted to Seller that such exchange in fact complies with, Section 1031 of the Code. Purchaser agrees that if Seller wishes to make such election, it must do so prior to the Closing Date. If Seller so elects, the Purchaser shall reasonably cooperate at Seller’s sole expense, including amending this agreement as may be helpful or necessary to facilitate such exchangesguarantor.

1031 Exchanges. (a) Purchaser agrees that, at Seller’s Sellers’ sole election, this transaction or any portion thereof may be structured as one or more separate exchanges (including deferred exchanges) of like-kind properties under Section 1031 of the Code, and the regulations and proposed regulations thereunder, provided that (i) Seller Sellers shall effect each exchange through (A) an assignment of its this Agreement or their rights under this Agreement (in form and substance reasonably satisfactory to Purchaser and SellerSeller of the applicable Property) to a “qualified intermediary” (within the meaning of Treasury Regulations Section 1.1031(k)-1(g)(4)(iii)1.1031(k)-1), which assignment shall be executed and delivered on or before the Closing and/or (B) the transfer of one or more of the Shopping Center properties listed on Schedule 14.22 to an “exchange accommodation titleholder” within the meaning of Revenue Procedure 2000-37, 0000-0 X.X. 000, (xx) the Closing shall not be delayed by reason of any exchange nor shall the consummation or accomplishment of any exchange be a condition precedent or condition subsequent to Seller’s Sellers’ obligations under this Agreement; (iii) Purchaser shall not be required to acquire or hold title to any real property for purposes of consummating any such exchange; (iv) Purchaser shall not be required to take an assignment of the purchase agreement for the replacement property; (v) Seller Sellers shall pay any additional costs that would not otherwise have been incurred by Purchaser had Seller Sellers not consummated the sale through an exchange; and (vi) Seller Sellers shall, and hereby doesdo, fully indemnify, defend, and hold harmless Purchaser from, any loss, cost, damages, liability, claim, proceeding, cause of action, or expense (including reasonable attorneys’ fees, expenses, and disbursements) of any kind or nature whatsoever arising out of, connected with, or in any manner related to such exchange that would not otherwise have been incurred by the Purchaser had Seller the Sellers not consummated such sale through an exchange under Section 1031 of the Code and such obligation shall survive the Closing indefinitelyCode. Purchaser shall not by this Agreement or acquiescence to any exchange (a) have its rights under this Agreement affected or diminished in any manner or (b) be responsible for compliance with, or be deemed to have warranted to any Seller that such exchange in fact complies with, Section 1031 of the Code. Purchaser agrees that if any Seller wishes to make such election, it must do so prior to the Closing Date. If any Seller so elects, the Purchaser shall reasonably cooperate at Seller’s sole expensecooperate, including amending this agreement as may be helpful or necessary to facilitate such exchanges.