Common use of 1031 Exchanges Clause in Contracts

1031 Exchanges. Seller and Buyer acknowledge and agree that the purchase and sale of the Property may be part of a tax-free exchange under Section 1031 of the Code ("Exchange"), for either Buyer or Seller. Each party hereby agrees to take all reasonable steps on or before the Closing Date to facilitate such Exchange if requested by the other party, provided that (a) 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 as if such delegation and assignment shall not have taken place; (iv) Intermediary or exchange accommodation titleholder, as the case may be, shall have no liability to Buyer; (v) the closing of the transfer 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. Notwithstanding anything to the contrary 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. No party participating in an Exchange transaction pursuant to this Section 10.13 shall make any representation or warranty to the other party concerning the tax treatment of such transaction 3990 Bxxxxxx -26- Purchase and Sale Agreement

1031 Exchanges. Seller and Buyer acknowledge and agree that the purchase and sale of the Property may be part of a tax-free exchange under Section 1031 of the Code ("Exchange"), for either Buyer or Seller. Each party hereby agrees to take all reasonable steps on or before the Closing Date to facilitate such Exchange if requested by the other party, provided that (a) no party making Buyer hereby acknowledges that Seller may utilize the tax laws of the United States, as promulgated and enforced by the Internal Revenue Service, to later effect a “like kind” tax deferred exchange under Internal Revenue Code (I.R.C.) Section 1031 in order to reduce, mitigate or otherwise defer the tax liability to Seller as a consequence of the sale and acquisition contemplated hereby. Buyer agrees to cooperate with Seller, and at the instruction of tax counsel of Seller, to assist in the accomplishment of any such accommodation tax planning and 1031 “like kind” exchange; provided, however, (i) Buyer shall not be required to acquire or take title to any substitute exchange property, (bii) such Exchange Buyer shall not affect the representations, warranties, liabilities and obligations of the parties be required to each other under this Agreement, (c) no party making such accommodation shall incur any additional cost, expense or liability whatsoever in connection with such Exchange (the exchange, including, without limitation, any obligation for the payment of any escrow, title, brokerage or other than expenses of reviewing and executing documents required in connection costs including attorneys’ fees incurred with such Exchange ), and (d) no dates in this Agreement will be extended as a result thereof. Notwithstanding anything respect to the contrary contained in the foregoingexchange, 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 not be released from any of its obligations, warranties or representations set forth in this Agreement or from liability for its obligations any prior or subsequent default under this Agreement Agreement, which obligations shall continue as if such delegation the obligations of a principal and assignment shall not have taken place; of a surety or guarantor, (iv) Intermediary or Seller shall give Buyer at least five (5) days prior notice of the proposed changes required to effect such exchange accommodation titleholderand the identity of any party to be substituted in the escrow, as the case may be, shall have no liability to Buyer; (v) the closing of the transfer of the Property to Buyer Seller shall be undertaken responsible for preparing all additional agreements, documents and escrow instructions (collectively, the “Exchange Documents”) required by direct deed from Seller (orthe exchange, if applicableat its sole cost and expense, 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 be responsible for making all liability, costs and expenses arising from and out of such Exchange by Seller. Notwithstanding anything determinations as to the contrary contained legal sufficiency, tax considerations and other considerations relating to the proposed exchange, the Exchange Documents and the transactions contemplated thereby, and Seller shall in no event be responsible for, or in any way be deemed to warrant or represent any tax or other consequences of the exchange transaction, and (vii) the election to effect such an exchange 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 foregoingregulations issued under Internal Revenue Code Section 1031; provided, if Buyer so elects to close the acquisition however, any such assignment shall not release Seller from any of the Property as an Exchange ,then (A) Buyerits obligations, at its sole option, may delegate its obligations to acquire the Property 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 obligations of a principal and not a surety or guarantor. (b) Seller hereby acknowledges that Buyer may assign its rights to receive utilize the Property from Sellertax laws of the United States, as promulgated and enforced by the Internal Revenue Service, to an Intermediary or to an later effect a “like kind” tax deferred exchange accommodation titleholder, as the case may be; under Internal Revenue Code (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. No party participating in an Exchange transaction pursuant to this Section 10.13 shall make any representation or warranty to the other party concerning the tax treatment of such transaction 3990 Bxxxxxx -26- Purchase and Sale AgreementI.R.

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 Buyer acknowledge substance reasonably satisfactory to Purchaser and agree that 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 of the Property may be part of a tax-free through an exchange under Section 1031 of the Code ("Exchange"), for either Buyer or Seller. Each party hereby agrees to take all reasonable steps on or before and such obligation shall survive the Closing Date 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 Exchange if requested by the other party, provided that (a) 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 as if such delegation and assignment shall not have taken place; (iv) Intermediary or exchange accommodation titleholder, as the case may be, shall have no liability to Buyer; (v) the closing of the transfer 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. Notwithstanding anything to the contrary 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. No party participating in an Exchange transaction pursuant to this Section 10.13 shall make any representation or warranty to the other party concerning the tax treatment of such transaction 3990 Bxxxxxx -26- Purchase and Sale Agreementexchanges.

1031 Exchanges. (a) Purchaser agrees that, at 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) Sellers shall effect each exchange through (A) an assignment of this Agreement or rights under this Agreement (in form and substance reasonably satisfactory to Purchaser and Seller of the applicable Property) to a “qualified intermediary” (within the meaning of Treasury Regulations Section 1.1031(k)-1), which assignment shall be executed and Buyer acknowledge and agree that delivered on or before the Closing and/or (B) the transfer of one or more of the 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 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) Sellers shall pay any additional costs that would not otherwise have been incurred by Purchaser had Sellers not consummated the sale through an exchange; and (vi) Sellers shall, and hereby do, 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 the Sellers not consummated such sale through an exchange under Section 1031 of the Property Code. 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, including amending this agreement as may be part of a tax-free helpful or necessary to facilitate such exchanges. (b) The parties acknowledge that it is EQY’s current intention to effect an exchange under Section 1031 of the Code of the Properties listed on Schedule 14.22 whereby the Chicago Deferred Exchange Company ("Exchange"“CDEC”), for either Buyer or Selleracting as a “qualified intermediary” (within the meaning of Treasury Regulations Section 1.1031(k)-1), will acquire legal title to such Properties prior to the Closing will deliver such legal title as agent of Sellers to Purchaser at Closing. Each party CDEC hereby agrees to take all reasonable steps act as a qualified intermediary with respect to the Properties set forth on Schedule 14.22, as such Schedule may be amended as permitted under this Section 14.22(b). The list of Properties set forth on Schedule 14.22 may be modified as necessary prior to Closing to reflect the elimination of any Property from this Agreement or before the Closing Date addition or elimination of any Property at EQY’s election. The assignment and exchange referred to facilitate such Exchange if requested by the other party, provided that (ain this Section 14.22(b) no party making such accommodation shall be required subject to acquire any substitute property, (bthe requirements set forth in Section 14.22(a) such Exchange but shall not affect the representations, warranties, liabilities and obligations of the parties to each other limit any party’s rights 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 Section 14.22(a), 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 as if such delegation and assignment shall not have taken place; (iv) Intermediary or exchange accommodation titleholder, as the case may be, shall have no liability to Buyer; (v) the closing of the transfer 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. Notwithstanding anything to the contrary 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. No party participating in an Exchange transaction pursuant to this Section 10.13 shall make any representation or warranty to the other party concerning the tax treatment of such 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) 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 Seller 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 Buyer acknowledge and agree 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 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 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) Sellers shall pay any additional costs that would not otherwise have been incurred by Purchaser had the applicable Seller(s) not consummated the sale through an exchange; and (vi) 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 the applicable Seller(s) not consummated such sale of the Property may be part of a tax-free through an exchange under Section 1031 of the Code ("Exchange"), for either Buyer or Seller. Each party hereby agrees to take all reasonable steps on or before and such obligation shall survive the Closing Date 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 any Seller(s) that such exchange in fact complies with, Section 1031 of the Code. Purchaser agrees that if any Seller(s) wishes to make such election, it must do so prior to the Closing Date. If any Seller(s) so elects, the Purchaser shall reasonably cooperate at such Seller(s)’s sole expense, including amending this agreement as may be helpful or necessary to facilitate such Exchange if requested by the other party, provided that (a) 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 as if such delegation and assignment shall not have taken place; (iv) Intermediary or exchange accommodation titleholder, as the case may be, shall have no liability to Buyer; (v) the closing of the transfer 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. Notwithstanding anything to the contrary 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. No party participating in an Exchange transaction pursuant to this Section 10.13 shall make any representation or warranty to the other party concerning the tax treatment of such transaction 3990 Bxxxxxx -26- Purchase and Sale Agreementexchanges.