Exchange Provisions. Seller acknowledges that Buyer may elect to engage in a tax-deferred exchange ("Exchange") pursuant to Section 1031 of the Internal Revenue Code. To effect this Exchange, Buyer may assign its rights in, and delegate its duties under, this Agreement to an exchange accommodator which Buyer shall determine. As an accommodation to Buyer, Seller agrees to cooperate with Buyer in connection with the Exchange, including the execution of documents therefor, provided the following terms and conditions are satisfied: (a) Seller shall have no obligation to take title to any property in connection with the Exchange, nor shall Seller have any liability to Buyer in connection with any such property ("Exchange Property"); (b) Buyer shall be solely responsible, and Seller shall have no responsibility whatsoever, for negotiating any and all agreements, escrow instructions and other documents (collectively "Exchange Documents") with respect to the Exchange Property, as well as for any and all investigations, approvals and/or other actions required to be taken or permitted to be taken by Buyer under the Exchange Documents; (c) Seller shall in no way to be obligated to pay any escrow costs, brokerage commissions, title charges, survey costs, recording costs or other charges incurred with respect to any Exchange Property and/or the Exchange, and Buyer shall reimburse Seller for any professional fees including, without limitation, actual reasonable attorneys' fees which Seller may incur with respect thereto; (d) In no way shall the Closing of this transaction be contingent upon or otherwise subject to the consummation of the Exchange, and the escrow shall timely close in accordance with the terms of this Agreement, notwithstanding any failure, for any reason, of the parties to the Exchange to effect same; (e) Buyer shall not be relieved of any obligations which would otherwise survive the Closing by reason of effecting the Exchange contemplated herein, and all such obligations of Buyer shall survive the Closing in the same fashion as if the Exchange had not taken place; (f) Seller shall not be required to make any representations or warranties, or to assume any obligations, or to spend any sum or to incur any personal liability whatsoever in connection with the Exchange; (g) No representations, warranties, covenants and/or indemnification obligations set forth in this Agreement shall be affected or limited by Buyer's use of an exchange accommodator and shall survive the Exchange and shall continue to inure, as set forth in this Agreement, from Buyer for the benefit of Seller. No provision of any separate instruction or related instruction from Buyer, the exchange accommodator and/or any other party shall be deemed to modify the terms of this Agreement or any rights of Seller hereunder; and (h) Buyer agrees to indemnify, protect, defend (with counsel reasonably chosen by Seller) and hold harmless Seller from and against any and all claims, demands, causes of action, liabilities, costs and expenses (including, without limitation, actual reasonable attorneys fees) asserted against and/or incurred by Seller in connection with the Exchange or attempted Exchange. Seller makes absolutely no representations or warranties of any kind or nature, express or implied, that tax-deferred exchange treatment is available to Buyer with respect to the Exchange, or that such a transaction will qualify in any respect for such treatment, and Seller shall incur no liability if the Exchange fails to qualify for tax-deferred treatment for any reason. If Seller defaults under the terms of this Agreement, then Seller shall be liable to Buyer for only those damages which would have occurred if Buyer had not included the Property in any Exchange. Specifically excluded from such damages for which Seller would be liable, but not by way of limitation, are any consequential damages Buyer may incur because of a loss of tax advantages, tax deferral or other detrimental tax impacts upon Buyer caused by Seller's default. Buyer hereby acknowledges and represents to Seller that Buyer is relying solely and entirely upon the advice of Buyer's own attorneys and consultants with respect to any and all aspects of any such Exchange. In no event whatsoever shall the obligations of Buyer under this Agreement be contingent upon the inclusion of this transaction and/or the Property as part of any Exchange in which Buyer may become involved.
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Samples: Purchase and Sale Agreement (Mercury Interactive Corporation)
Exchange Provisions. Any provision in this Contract to the contrary notwithstanding, the following provisions shall apply:
A. At Seller’s option, exercisable by written notice to Buyer at or before Closing, in lieu of Seller acknowledges that selling the Property to Buyer for cash, Seller may instead elect to engage transfer the Property to Buyer in exchange for other real property of a taxlike-deferred kind (“Exchange Land”) to be designated by Seller at or after Closing such that the exchange ("Exchange") pursuant to shall qualify for nonrecognition of gain or loss under Section 1031 of the Internal Revenue CodeCode of 1986, as amended. To If Seller elects to effect this Exchangea like-kind exchange, Buyer may assign its rights inshall cooperate in effecting the exchange, and delegate its duties under, this Agreement to an the exchange accommodator which Buyer shall determine. As an accommodation to Buyer, Seller agrees to cooperate with Buyer in connection with the Exchange, including the execution of documents therefor, provided the following terms and conditions are satisfied:
(a) Seller shall have no obligation to take title to any property in connection with the Exchange, nor shall Seller have any liability to Buyer in connection with any such property ("Exchange Property");
(b) Buyer shall be solely responsiblecompleted through the use of a “qualified intermediary” as described in Section 14.B. below, and Seller shall have no responsibility whatsoever, for negotiating any and all agreements, escrow instructions and other documents (collectively "Exchange Documents") with respect to the Exchange Property, as well as for any and all investigations, approvals and/or other actions required to be taken or permitted to be taken by Buyer under the Exchange Documents;
(c) Seller shall in no way to be obligated to pay any escrow costs, brokerage commissions, title charges, survey costs, recording costs or other charges incurred with respect to any Exchange Property and/or the Exchange, and Buyer shall reimburse Seller for any professional fees including, without limitation, actual reasonable attorneys' fees which Seller may incur with respect thereto;
(d) In no way shall the Closing of this transaction be contingent upon or otherwise subject to the consummation of the Exchange, and the escrow shall timely close in accordance with the terms of this Agreement, notwithstanding any failure, for any reason, of the parties to the Exchange to effect same;
(e) Buyer shall not be relieved of any obligations which would otherwise survive the Closing by reason of effecting the Exchange contemplated herein, and all such obligations of Buyer shall survive the Closing in the same fashion as if the Exchange had not taken place;
(f) Seller shall not be required to make any representations or warranties, or to assume any obligations, or to spend any sum or to incur any personal liability whatsoever in connection with the Exchange;
(g) No representations, warranties, covenants and/or indemnification obligations set forth in this Agreement shall be affected or limited by Buyer's use of an exchange accommodator and shall survive the Exchange and shall continue to inure, as set forth in this Agreement, from Buyer for the benefit of Seller. No provision of any separate instruction or related instruction from Buyer, the exchange accommodator and/or any other party shall be deemed to modify the terms of this Agreement or any rights of Seller hereunder; and
(h) Buyer agrees to indemnify, protect, defend (with counsel reasonably chosen by Seller) indemnify and hold Buyer harmless Seller from and against any loss, cost, damage or expense (including reasonable attorney’s fees and expenses) suffered by Buyer as a result of performing its obligations under this Section 14., assisting in the exchange, permitting the assignment of this Contract to an intermediary and making payment to that intermediary.
B. If Seller elects to effect a like-kind exchange of the Property, Seller shall assign all claimsof its right, demandstitle and interest in and to this Contract to Independent Trustees, causes of action, liabilities, costs and expenses Inc. as “qualified intermediary” under Treasury Regulation Section 1.1031(k)-1(g) (including, without limitation, actual reasonable attorneys fees) asserted against and/or incurred by Seller in connection with the Exchange or attempted Exchange“Intermediary”). Seller makes absolutely no representations or warranties shall provide written notice of any kind or nature, express or implied, that tax-deferred exchange treatment is available the assignment (including a copy of the executed Agreement of Assignment) to Buyer. Seller does not presently intend to elect to transfer the Real Property to Buyer in exchange for Exchange Land but if Seller does elect to do so Seller shall provide Buyer as soon as reasonably practicable with respect information regarding such transaction and in any event Seller shall provide all requisite information concerning such an exchange to the Exchange, or that such a transaction will qualify in any respect for such treatment, and Seller shall incur extent relevant to the Closing no liability if the Exchange fails to qualify for tax-deferred treatment for any reason. If Seller defaults under the terms of this Agreement, then Seller shall be liable to Buyer for only those damages which would have occurred if Buyer had not included the Property in any Exchange. Specifically excluded from such damages for which Seller would be liable, but not by way of limitation, are any consequential damages Buyer may incur because of a loss of tax advantages, tax deferral or other detrimental tax impacts upon Buyer caused by Seller's default. Buyer hereby acknowledges and represents to Seller that Buyer is relying solely and entirely upon the advice of Buyer's own attorneys and consultants with respect to any and all aspects of any such Exchange. In no event whatsoever shall the obligations of Buyer under this Agreement be contingent upon the inclusion of this transaction and/or the Property as part of any Exchange in which Buyer may become involved.later than April 1,
Appears in 1 contract
Exchange Provisions. Seller acknowledges that Buyer may elect to engage in a tax-deferred exchange ("Exchange") pursuant to Section 1031 of the Internal Revenue Code. To effect this Exchange, Buyer may assign its rights in, and delegate its duties under, this Agreement to an exchange accommodator which Buyer shall determine. As an accommodation to Buyer, Seller agrees to cooperate with Buyer in connection with the Exchange, including the execution of documents therefor, provided the following terms and conditions are satisfied:
(a) Seller At the Effective Time, all shares of Common Stock (and associated Rights), by virtue of the Merger and without any action on the part of the Holders, shall have no obligation longer be outstanding and shall be canceled and retired and shall cease to take title exist, and each Holder of a cer- tificate representing any such share of Common Stock shall thereafter cease to any property in connection with the Exchange, nor shall Seller have any liability rights with respect to Buyer such share of Common Stock (and associated Right) except the right to receive the Merger Consideration for such share of Common Stock (and associated Right) specified in connection with any such property ("Exchange Property");Section 2.5.
(b) Buyer Prior to the Effective Time, Shire shall designate a bank or trust company reasonably satisfactory to Xxxxxxx to act as Exchange Agent hereunder (the "Exchange Agent"). At the Effective Time, Shire shall (i) issue to and deposit with the Depositary, for the benefit of the holders of shares of Common Stock converted into Shire ADSs in accordance with Sections 2.5(a) and (f), Ordinary Shares in an amount sufficient to permit the Depositary to issue Shire ADSs representing the number of Shire ADSs issuable pursuant to Sections 2.5(a) and (f) and (ii) deposit, in trust, with the Exchange Agent for the benefit of the Holders, Ordinary Shares constituting the Merger Consideration. As soon as practicable after the Effective Time, the Surviving Corporation shall cause the Exchange Agent to mail to each Holder (i) a form of letter of transmittal specifying that delivery shall be solely responsibleeffected, and Seller risk of loss and title to certificates of Common Stock shall pass, only upon proper delivery of such certificates to the Exchange Agent and (ii) instructions for use in surrendering such certificates in exchange for the Merger Consideration set forth in Section 2.5. Such letter of transmittal shall also indicate that Holders have no responsibility whatsoeveran irrevocable right to elect to receive all or any portion of their Ordinary Shares as Ordinary Shares in lieu of Shire ADSs as set forth in Section 2.5(f). Upon surrender of any such certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, the holder of such certificate shall be entitled to receive in exchange therefor the Merger Consideration. Shire shall cause the Depositary to issue Shire ADRs through and upon the instructions of the Exchange Agent, for negotiating the benefit of the holders of shares of Common Stock who have not elected to receive Ordinary Shares pursuant to Section 2.5(f). Neither the Exchange Agent nor any party hereto shall be liable to any Holder for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar law. Shire and all agreementsthe Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any Holder such amounts as the Surviving Corporation or the Exchange Agent is required to deduct and withhold under the Code or any provision of national, escrow instructions and other documents (collectively "Exchange Documents") state or local law, with respect to the making of such payment. To the extent such amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Holder in respect of whom such deduction and withholding was made. Any Merger Consideration payable to Holders pursuant to Section 2.5 which remains undistributed to the Holders for a period of six months after the Closing Date shall be delivered to the Surviving Corporation upon its request, and any Holders who have not surrendered to the Exchange PropertyAgent certificates for Common Stock or complied with the instructions in the letter of transmittal, as well as the case may be, shall thereafter look only to the Surviving Corporation for any and all investigations, approvals and/or other actions required to be taken or permitted to be taken by Buyer under payment of such Merger Consideration. The Surviving Corporation shall instruct the Exchange Documents;Agent to invest all cash held by it in Cash Equivalents. Interest earned on such Cash Equivalents shall be paid to the Surviving Corporation.
(c) Seller Until so surrendered, each certificate representing Common Stock shall represent, after the Effective Time, solely the right to receive the Merger Consideration specified in no way to be obligated to pay any escrow costs, brokerage commissions, title charges, survey costs, recording costs or other charges incurred with respect to any Exchange Property and/or Section 2.5. The Merger Consideration issued upon the Exchange, and Buyer shall reimburse Seller for any professional fees including, without limitation, actual reasonable attorneys' fees which Seller may incur with respect thereto;
(d) In no way shall the Closing surrender of this transaction be contingent upon or otherwise subject to the consummation of the Exchange, and the escrow shall timely close Common Stock in accordance with the terms of this Agreement, notwithstanding any failure, for any reason, of the parties to the Exchange to effect same;
(e) Buyer shall not be relieved of any obligations which would otherwise survive the Closing by reason of effecting the Exchange contemplated herein, and all such obligations of Buyer shall survive the Closing in the same fashion as if the Exchange had not taken place;
(f) Seller shall not be required to make any representations or warranties, or to assume any obligations, or to spend any sum or to incur any personal liability whatsoever in connection with the Exchange;
(g) No representations, warranties, covenants and/or indemnification obligations set forth in this Agreement shall be affected or limited by Buyer's use of an exchange accommodator and shall survive the Exchange and shall continue to inure, as set forth in this Agreement, from Buyer for the benefit of Seller. No provision of any separate instruction or related instruction from Buyer, the exchange accommodator and/or any other party hereof shall be deemed to modify the terms have been issued in full satisfaction of this Agreement or any all rights of Seller hereunder; and
pertaining to such Common Stock (h) Buyer agrees to indemnify, protect, defend (with counsel reasonably chosen by Seller) and hold harmless Seller from and against any and all claims, demands, causes of action, liabilities, costs and expenses (including, without limitation, actual reasonable attorneys fees) asserted against and/or incurred by Seller in connection with the Exchange or attempted Exchange. Seller makes absolutely no representations or warranties of any kind or nature, express or implied, that tax-deferred exchange treatment is available to Buyer with respect to the Exchange, or that such a transaction will qualify in any respect for such treatment, and Seller shall incur no liability if the Exchange fails to qualify for tax-deferred treatment for any reason. If Seller defaults under the terms of this Agreement, then Seller shall be liable to Buyer for only those damages which would have occurred if Buyer had not included the Property in any Exchange. Specifically excluded from such damages for which Seller would be liable, but not by way of limitation, are any consequential damages Buyer may incur because of a loss of tax advantages, tax deferral or other detrimental tax impacts upon Buyer caused by Seller's default. Buyer hereby acknowledges and represents to Seller that Buyer is relying solely and entirely upon the advice of Buyer's own attorneys and consultants with respect to any and all aspects of any such Exchange. In no event whatsoever shall the obligations of Buyer under this Agreement be contingent upon the inclusion of this transaction and/or the Property as part of any Exchange in which Buyer may become involvedassociated Rights).
Appears in 1 contract
Exchange Provisions. 19.01 The Seller acknowledges intends, for the benefit of the Seller, that Buyer the conveyance of the Real Property may elect to engage in be a tax-part of a tax deferred exchange ("Exchange") pursuant to Section §1031 of the Internal Revenue Code. To effect this ExchangeCode of 1986, Buyer may assign its rights inas amended, and delegate its duties underthe Regulations promulgated thereunder, at no cost to the Purchaser. In connection with such tax deferred exchange, the Seller shall have the right to assign the right, title and interest of the Seller in and to this Agreement to an exchange accommodator which Buyer a “qualified intermediary” (as defined in Reg. §1.1031(k)-1(g)(4)(iii)). If the Seller shall determine. As an accommodation so assign this Agreement, the Purchase Price (or any portion as prescribed by the Seller) shall be paid to Buyer, Seller agrees to such qualified intermediary.
19.02 The Purchaser shall cooperate with Buyer the Seller in connection with effecting such tax-deferred exchange and shall execute such documents (including an assignment of this Agreement) as the ExchangeSeller, including the execution Seller’s counsel, the qualified intermediary, and such qualified intermediary’s counsel (or any of documents therefor, them) shall deem necessary or desirable to consummate such exchange transaction; provided that (i) the following terms and conditions are satisfied:
(a) Seller shall have no obligation to take title to any property in connection with the Exchange, nor shall Seller have any liability to Buyer in connection with any such property ("Exchange Property");
(b) Buyer Purchaser shall be solely responsible, and Seller shall have no responsibility whatsoever, for negotiating any and all agreements, escrow instructions and other documents (collectively "Exchange Documents") with respect to reimbursed by the Exchange Property, as well as for any and all investigations, approvals and/or other actions required to be taken or permitted to be taken by Buyer under the Exchange Documents;
(c) Seller shall in no way to be obligated to pay any escrow costs, brokerage commissions, title charges, survey costs, recording costs or other charges incurred with respect to any Exchange Property and/or the Exchange, and Buyer shall reimburse Seller for any professional fees including, without limitation, actual reasonable attorneys' fees costs and expenses which Seller may incur with respect thereto;
(d) In no way shall the Closing of this transaction be contingent upon or Purchaser would not otherwise subject to the consummation of the Exchange, and the escrow shall timely close have incurred but for its participation in accordance with the terms of this Agreement, notwithstanding any failure, for any reason, of the parties to the Exchange to effect same;
(e) Buyer shall not be relieved of any obligations which would otherwise survive the Closing such exchange program by reason of effecting this Section; (ii) the Exchange contemplated herein, and all such obligations of Buyer shall survive the Closing in the same fashion as if the Exchange had not taken place;
(f) Seller Purchaser shall not be required to make any representations or warranties, or to assume any obligations, or to spend any sum or to incur any personal liability whatsoever liability, risk, cost or expense in connection with the Exchange;
exchange including, but not limited to, attorneys’ fees and recordation costs, or taking title to any property; (giii) No representations, warranties, covenants and/or indemnification obligations set forth in this Agreement shall be affected or limited by Buyer's use of an exchange accommodator and shall survive the Exchange and shall continue to inure, as set forth in this Agreement, from Buyer for the benefit of Seller. No provision of any separate instruction or related instruction from Buyer, the exchange accommodator and/or does not delay Closing; and (iv) any other party shall be deemed to modify the terms assignment of this Agreement or any rights of to the qualified intermediary is done pursuant to a written agreement, which expressly permits the Purchaser to pursue the original Seller hereunder for defaults and breaches hereunder; and
(h) Buyer agrees to indemnify, protect, defend (with counsel reasonably chosen by Seller) . The Seller shall indemnify and hold the Purchaser harmless Seller from and against any and all claimscosts, demands, causes of action, liabilities, costs and expenses (including, without limitation, actual reasonable attorneys fees) asserted against and/or incurred by Seller in connection with the Exchange or attempted Exchange. Seller makes absolutely no representations or warranties of any kind or nature, express or implied, that tax-deferred exchange treatment is available to Buyer with respect to the Exchange, or that such a transaction will qualify in any respect for such treatmentexpenses, and Seller shall incur no liability if liabilities that the Exchange fails to qualify for tax-deferred treatment for any reason. If Seller defaults under the terms of this Agreement, then Seller shall be liable to Buyer for only those damages which would have occurred if Buyer had not included the Property in any Exchange. Specifically excluded from such damages for which Seller would be liable, but not by way of limitation, are any consequential damages Buyer Purchaser may incur because by reason of a loss of tax advantages, tax deferral or other detrimental tax impacts upon Buyer caused by Seller's default. Buyer hereby acknowledges and represents to Seller that Buyer is relying solely and entirely upon the advice of Buyer's own attorneys and consultants with respect to any and all aspects of any its participation in such Exchange. In no event whatsoever shall the obligations of Buyer under this Agreement be contingent upon the inclusion of this transaction and/or the Property as part of any Exchange in which Buyer may become involvedexchange program.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Comstock Homebuilding Companies, Inc.)
Exchange Provisions. Seller acknowledges that Buyer may elect to engage in a tax-deferred exchange ("Exchange") pursuant to Section 1031 of the Internal Revenue Code. To effect this Exchange, Buyer may assign its rights in, and delegate its duties under, this Agreement to an exchange accommodator which Buyer shall determine. As an accommodation to Buyer, Seller agrees to cooperate with Buyer in connection with the Exchange, including the execution of documents therefor, provided the following terms and conditions are satisfied:
(a) Seller shall have no obligation to take title to any property in connection with the Exchange, nor shall Seller have any liability to Buyer in connection with any such property ("Exchange Property");
(b) Buyer shall be solely responsible, and Seller shall have no responsibility whatsoever, for negotiating any and all agreements, escrow instructions and other documents (collectively "Exchange Documents") with respect to the Exchange Property, as well as for any and all investigations, approvals and/or other actions required to be taken or permitted to be taken by Buyer under the Exchange Documents;
(c) Seller shall in no way to be obligated to pay any escrow costs, brokerage commissions, title charges, survey costs, recording costs or other charges incurred with respect to any Exchange Property and/or the Exchange, and Buyer shall reimburse Seller for any professional fees including, without limitation, actual reasonable attorneys' fees which Seller may incur with respect thereto;
(d) In no way shall the Closing of this transaction be contingent upon or otherwise subject to the consummation of the Exchange, and the escrow shall timely close in accordance with the terms of this Agreement, notwithstanding any failure, for any reason, of the parties to the Exchange to effect same;
(e) Buyer shall not be relieved of any obligations which would otherwise survive the Closing by reason of effecting the Exchange contemplated herein, and all such obligations of Buyer shall survive the Closing in the same fashion as if the Exchange had not taken place;
(f) Seller shall not be required to make any representations or warranties, or to assume any obligations, or to spend any sum or to incur any personal liability whatsoever in connection with the Exchange;
(g) No representations, warranties, covenants and/or indemnification obligations set forth in this Agreement shall be affected or limited by Buyer's use of an exchange accommodator and shall survive the Exchange and shall continue to inure, as set forth in this Agreement, inure from Buyer for the benefit of Seller. No provision of any separate instruction or related instruction from Buyer, the exchange accommodator and/or any other party shall be deemed to modify the terms of this Agreement or any rights of Seller hereunder; and
(h) Buyer agrees to indemnify, protect, defend (with counsel reasonably chosen by Seller) and hold harmless Seller from and against any and all claims, demands, causes of action, liabilities, costs and expenses (including, without limitation, actual reasonable attorneys fees) asserted against and/or incurred by Seller in connection with the Exchange or attempted Exchange. Seller makes absolutely no representations or warranties of any kind or nature, express or implied, that tax-deferred exchange treatment is available to Buyer with respect to the Exchange, or that such a transaction will qualify in any respect for such treatment, and Seller shall incur no liability if the Exchange fails to qualify for tax-deferred treatment for any reason. If Seller defaults under the terms of this Agreement, then Seller shall be liable to Buyer for only those damages which would have occurred if Buyer had not included the Property in any Exchange. Specifically excluded from such damages for which Seller would be liable, but not by way of limitation, are any consequential damages Buyer may incur because of a loss of tax advantages, tax deferral or other detrimental tax impacts upon Buyer caused by Seller's default. Buyer hereby acknowledges and represents to Seller that Buyer is relying solely and entirely upon the advice of Buyer's own attorneys and consultants with respect to any and all aspects of any such Exchange. In no event whatsoever shall the obligations of Buyer under this Agreement be contingent upon the inclusion of this transaction and/or the Property as part of any Exchange in which Buyer may become involved.
Appears in 1 contract
