Common use of Like-Kind Exchanges Clause in Contracts

Like-Kind Exchanges. Diablo shall have the right, but not the obligation, to effect the transfer and conveyance of the Diablo Assets, in whole or in part, as part of one or more exchanges under Section 1031 of the Code, including the delay in Closing of escrow for those Assets subject to the exchange. If Diablo so elects, it shall provide notice to ATS of its election (the "Like-Kind Notice"), setting forth in reasonable detail which portion or portions of the Diablo Assets are to be so treated. In such event, Diablo (i) may at any time at or prior to Closing assign its rights, in whole or in part, under this Agreement with respect to such Diablo Assets to a "qualified intermediary" as defined in Treas. Reg. ss.1.1031(k)-1(g)(4), subject to all of the rights and obligations hereunder of ATS, and (ii) shall promptly provide written notice of such assignment to ATS. No such assignment shall, however, relieve Diablo of its obligations under this Agreement. If Diablo shall have given a Like-Kind Notice, ATS shall (i) promptly provide Diablo with written acknowledgment of such notice, (ii) at the Closing, convey the Purchase Price for the Diablo Assets (or such portion of them as shall have been designated in writing by Diablo) to the "qualified intermediary" rather than to Diablo (which conveyance shall, to such extent, discharge the obligation of ATS to deliver such Purchase Price (or portion thereof), and (iii) at the request of Diablo extend the closing of escrow for all or a portion of those assets subject to the Like-Kind Notice for a period not to exceed one year. Should the closing for any Like-Kind Notice properties be so extended, Diablo and ATS shall enter into an agreement reasonably acceptable to each party which agreement shall, to the maximum extent feasible, provide ATS with the rights, benefits, and obligations for any Like-Kind Notice property for which the closing is so extended. Without limiting the generality of the foregoing, Diablo and ATS shall promptly after receipt by ATS of the Like-Kind Notice, negotiate in good faith in order to determine the portion of the Purchase Price attributable to the Diablo Assets which are to be the subject of like-kind exchange and, in the event they are unable to so agree on such amount, it shall be determined by arbitration in accordance with the provisions of Section 9.15 and not materially inconsistent with the appraisal undertaken pursuant to Section 2.3. If such determination has not been made on or prior to the Closing, ATS shall transfer to the "qualified intermediary" the amount proposed by Diablo in the Like-Kind Notice, subject to an agreement by the "qualified intermediary" to remit to Diablo the excess, if any, of the amount so transferred over the amount as finally determined by the arbitrator.

Like-Kind Exchanges. Diablo shall have 11.12.1 Notwithstanding anything contained herein to the rightcontrary, but not Purchaser acknowledges that Seller may designate the obligation, Property as relinquished property to effect the transfer and conveyance of the Diablo Assets, in whole consummate a like-kind exchange or in part, as part of one or more exchanges reverse like-kind exchange under Section 1031 of the Code, including Code (an “Exchange”) with respect to property that Seller will acquire either prior to or within one hundred eighty (180) days after Closing (the delay in Closing of escrow for those Assets subject “Replacement Property”). In the event that Seller designates the Property as relinquished property to consummate an Exchange with respect to the exchange. If Diablo so elects, it shall provide notice to ATS Replacement Property through the use of its election a qualified intermediary (the "Like-Kind Notice"“Intermediary”) and/or an Exchange Accommodation Titleholder (“EAT”), setting forth Purchaser shall cooperate in reasonable detail which portion or portions structuring the transaction as an Exchange for the benefit of the Diablo Assets are Seller and Purchaser agrees to be so treated. In such event, Diablo (i) may at any time at or prior to Closing assign its rights, in whole or in part, render all required performance under this Agreement with respect to such Diablo Assets either the Intermediary or the EAT (either the Intermediary or the EAT referred to herein as the “1031 Assignee”) to the extent reasonably directed by Seller and to accept performance of all of Seller’s obligations by the 1031 Assignee. Purchaser agrees that performance by the 1031 Assignee will be treated as performance by Seller, and Seller agrees that Purchaser’s performance to the 1031 Assignee will be treated as performance to Seller. No assignment of rights under this Agreement to a "qualified intermediary" as defined in Treas. Reg. ss.1.1031(k)-1(g)(4), subject to all 1031 Assignee shall effect a release of the rights and obligations hereunder of ATS, and (ii) shall promptly provide written notice of such assignment to ATS. No such assignment shall, however, relieve Diablo of its Seller from obligations under this Agreement. 11.12.2 Notwithstanding anything contained herein to the contrary, Seller acknowledges that Purchaser may designate the Property as replacement property to consummate an Exchange with respect to property that Seller will relinquish either prior to or within one hundred eighty (180) days after Closing (the “Relinquished Property”). If Diablo In the event that Purchaser designates the Property as replacement property to consummate an Exchange with respect to the Relinquished Property through the use of a 1031 Assignee, Seller shall have given a Like-Kind Notice, ATS shall (i) promptly provide Diablo with written acknowledgment of such notice, (ii) at cooperate in structuring the Closing, convey the Purchase Price transaction as an Exchange for the Diablo Assets (or benefit of Purchaser and Seller agrees to render all required performance under this Agreement to such portion of them as shall have been designated in writing by Diablo) 1031 Assignee to the "qualified intermediary" rather than extent reasonably directed by Purchaser and to Diablo (which conveyance shall, to such extent, discharge accept performance of all of Purchaser’s obligations by the obligation of ATS to deliver such Purchase Price (or portion thereof)1031 Assignee. Seller agrees that performance by the 1031 Assignee will be treated as performance by Purchaser, and (iii) at the request of Diablo extend the closing of escrow for all or a portion of those assets subject Purchaser agrees that Seller’s performance to the Like-Kind Notice for 1031 Assignee will be treated as performance to Purchaser. No assignment of rights under this Agreement to a period not to exceed one year. Should the closing for any Like-Kind Notice properties be so extended, Diablo and ATS 1031 Assignee shall enter into an agreement reasonably acceptable to each party which agreement shall, to the maximum extent feasible, provide ATS with the rights, benefits, and effect a release of Purchaser from obligations for any Like-Kind Notice property for which the closing is so extended. Without limiting the generality of the foregoing, Diablo and ATS shall promptly after receipt by ATS of the Like-Kind Notice, negotiate in good faith in order to determine the portion of the Purchase Price attributable to the Diablo Assets which are to be the subject of like-kind exchange and, in the event they are unable to so agree on such amount, it shall be determined by arbitration in accordance with the provisions of Section 9.15 and not materially inconsistent with the appraisal undertaken pursuant to Section 2.3. If such determination has not been made on or prior to the Closing, ATS shall transfer to the "qualified intermediary" the amount proposed by Diablo in the Like-Kind Notice, subject to an agreement by the "qualified intermediary" to remit to Diablo the excess, if any, of the amount so transferred over the amount as finally determined by the arbitratorunder this Agreement.

Like-Kind Exchanges. Diablo Notwithstanding anything in this Agreement to the contrary, an Unencumbered Pool Property Owner shall have be permitted to engage in the right, but not the obligation, sale of an Unencumbered Pool Property in a tax-deferred exchange pursuant to effect the transfer and conveyance of the Diablo Assets, in whole or in part, as part of one or more exchanges under Section 1031 of the Code, including the delay in Closing of escrow for those Assets subject to the exchange. If Diablo so elects, it shall provide notice to ATS of its election Code (the "Like-a “Like Kind Notice"Exchange”), setting forth in reasonable detail which portion or portions of provided that the Diablo Assets are following terms and conditions shall apply to be so treated. In each such event, Diablo Like Kind Exchange: (a) Agent shall have approved (i) may at the structure and documentation for such Like Kind Exchange and such documentation shall not be modified, amended or terminated without Agent’s reasonable consent (provided, that Agent shall not have any time at consent or prior to Closing assign its rights, in whole or in part, under this Agreement approval rights with respect to (X) the documentation designating the replacement property for such Diablo Assets Like Kind Exchange or governing the acquisition of such replacement property from the owner thereof (such as the purchase and sale agreement, deed, xxxx of sale or other conveyance document) or (Y) any ministerial or administrative modifications to the documentation for such Like Kind Exchange (such as changing a "qualified intermediary" as defined in Treas. Reg. ss.1.1031(k)-1(g)(4notification address or designating a deposit account)), subject (ii) the qualified intermediary accommodating such Like Kind Exchange, which qualified intermediary shall, at all times during such Like Kind Exchange, satisfy the requirements therefor under the Code (such Person, a “Qualified Intermediary”), all such Agent approvals not to be unreasonably withheld, conditioned or delayed; (b) all or a portion of the rights proceeds from such sale (as determined by Borrower) shall be deposited with, and obligations hereunder held by, a Qualified Intermediary during the pendency of ATSsuch Like Kind Exchange (such proceeds, the “Exchange Funds”). Promptly after such sale, Borrower shall provide Agent with a written statement from the Qualified Intermediary confirming the receipt of such Exchange Funds by the Qualified Intermediary, the exact amount thereof and that such funds have been deposited into an exchange account held by or on behalf of such Qualified Intermediary. Borrower shall only be permitted to use the Exchange Funds to either (i) effectuate such Like Kind Exchange pursuant to the Code and the terms and conditions hereof, or (ii) prepay the Loans to the extent required by, and in accordance with, §3.2(a) (or, if no such prepayment is required, for any other purpose that does not cause a Default or Event of Default); (c) such Like Kind Exchange shall be completed by Borrower and such Unencumbered Pool Property Owner within the time period which is the shorter of (i) one hundred eighty (180) days following the sale of the Unencumbered Pool Property which is the subject thereof, and (ii) shall promptly provide written notice the time period provided under the Code to validly effectuate such Like Kind Exchange; (d) such Unencumbered Pool Property Owner and each other Subsidiary of Borrower which owned a direct or indirect interest in the Unencumbered Pool Property that is the subject of the Like Kind Exchange (and during the pendency of the Like Kind Exchange owns a direct or indirect interest in the Exchange Funds being held by such assignment to ATS. No such assignment shall, however, relieve Diablo of its obligations under this Agreement. If Diablo shall have given a Like-Kind Notice, ATS Qualified Intermediary) shall (i) promptly provide Diablo with written acknowledgment remain a Subsidiary Guarantor hereunder at all times during the pendency of the Like Kind Exchange if such Person is a Subsidiary Guarantor prior to the sale of such noticeUnencumbered Pool Property, and (ii) become a Subsidiary Guarantor hereunder promptly after such sale (but in any event, no later than ten (10) Business Days after such sale (as such time period may be extended by Agent in its reasonable discretion)) if such Person was not a Subsidiary Guarantor prior to such sale, and such Person shall thereafter remain a Subsidiary Guarantor hereunder at all times during the Closingpendency of the Like Kind Exchange, convey notwithstanding the Purchase Price existence of any Residual Developer Interests in such Person; (e) so long as (X) no Event of Default shall have occurred and be continuing and Borrower and such Unencumbered Pool Property Owner shall be in compliance with the terms of this §8.15, and (Y) Borrower shall have delivered to Agent a Compliance Certificate in connection with such Like Kind Exchange (calculated after giving effect to the adjustments set forth in clauses (i) and (ii) below), then: (i) the sum of the total amount of such Exchange Funds being held by such Qualified Intermediary, less the amount due in taxes being deferred by such Like Kind Exchange, as determined by Borrower in good faith and reasonably acceptable to the Agent (such amount, the “Net Restricted Proceeds”) shall, during the pendency of the Like Kind Exchange, be deemed to be included in the aggregate Unencumbered Pool Value solely for purposes of determining compliance with §9.1; provided, however, that no more than twenty-five percent (25%) of the Diablo Assets aggregate Unencumbered Pool Value shall at any time be deemed to include Net Restricted Proceeds pursuant to this §8.15(e)(i), and any excess shall be excluded from the calculation of aggregate Unencumbered Pool Value for purposes of determining compliance with §9.1; and (ii) during the pendency of the Like Kind Exchange, the Outstanding principal balance of all Loans and Letter of Credit Liabilities shall be deemed reduced by the Net Restricted Proceeds Limit solely for purposes of determining compliance with §9.2; (f) Upon the consummation of the Like Kind Exchange, (i) if such replacement property constitutes Eligible Real Estate and the conditions set forth in this Agreement for such Real Estate to be included as an Unencumbered Pool Property are satisfied (including, without limitation, the delivery of each of the Unencumbered Pool Qualification Documents with respect to such Real Estate, each of which shall be in form and substance reasonably satisfactory to the Agent), or the LKE Required Lenders otherwise consent to the inclusion of such Real Estate as an Unencumbered Pool Property, then such replacement property shall be included as an Unencumbered Pool Property, and (ii) if such replacement property does not constitute Eligible Real Estate and/or the conditions set forth in this Agreement for such Real Estate to be included as an Unencumbered Pool Property are not satisfied, then, (X) notwithstanding anything to the contrary contained in this Agreement, so long as such Real Estate is improved by an income-producing Multifamily Property, the development of which has been substantially completed as evidenced by the issuance of a Certificate of Occupancy and such Real Estate complies with all of the representations set forth in §6.19 and §6.22 of this Agreement concerning such Real Estate, then such Real Estate may be continued to be owned by Borrower or a Wholly-Owned Subsidiary of Borrower, but such Real Estate shall not be included as an Unencumbered Pool Property unless and until such Real Estate constitutes Eligible Real Estate and the conditions set forth in this Agreement for such Real Estate to be included as an Unencumbered Pool Property are satisfied (including, without limitation, the delivery of each of the Unencumbered Pool Qualification Documents with respect to such Real Estate, each of which shall be in form and substance reasonably satisfactory to the Agent), or the LKE Required Lenders otherwise consent to the inclusion of such Real Estate as an Unencumbered Pool Property, or (Y) Borrower shall promptly transfer, or cause to be transferred, such Real Estate (or the Equity Interests of the Person’s which directly or indirectly own such portion Real Estate), in each case, in accordance with the terms and conditions of them as this Agreement, such that the replacement property shall have been designated no longer be owned, directly or indirectly, by Borrower, any Subsidiary Guarantor or any of their respective Subsidiaries; provided, in writing by Diabloeach case under this §8.15(f), (I) the Borrower shall at all times remain in compliance with the terms and conditions of this Agreement, including, without limitation, §§3.2(a)), §9.1 and §9.2, (II) the Borrower shall deliver to Agent, within three (3) Business Days’ of the consummation of such Like Kind Exchange, a Compliance Certificate (calculated after giving effect to the "qualified intermediary" rather than to Diablo (which conveyance shall, to consummation of such extent, discharge the obligation of ATS to deliver such Purchase Price (or portion thereofLike Kind Exchange), and (iiiIII) Agent shall release from the Guaranty each Subsidiary Guarantor which owns, directly or indirectly, any Real Estate that is transferred as contemplated in item (Y) above, provided, that any such Subsidiary Guarantor (A) does not own any direct or indirect interest in any Real Estate (or own any Equity Interests of a Person which directly or indirectly owns such Real Estate) other than the Real Estate that is transferred as contemplated in item (Y) above, and (B) is either dissolved or all of the Equity Interests in such Subsidiary Guarantor are transferred or conveyed to a Person other than Borrower, any Subsidiary Guarantor or any of their respective Subsidiaries, such that the Subsidiary Guarantor being released pursuant to this clause (III) shall no longer be a Material Subsidiary at the request time of Diablo extend the closing of escrow for all or a portion of those assets subject such release. Notwithstanding anything to the Like-contrary contained in this §8.15, not more than one (1) Unencumbered Pool Property Owner (with respect to not more than one (1) Unencumbered Pool Property) shall be permitted to engage in a Like Kind Notice for a period not Exchange and obtain the benefit of this §8.15 at any one time. Nothing contained in this §8.15 shall be deemed to exceed one yearmodify or limit the covenants, representations, warranties, requirements, terms and conditions contained in this Agreement applicable to Real Estate, Eligible Real Estate and/or Unencumbered Pool Properties, including without limitation, the requirements set forth in the definition of Eligible Real Estate and §7.19(a). Should the closing for any Like-Kind Notice properties be so extended, Diablo and ATS shall enter into an agreement reasonably acceptable to each party which agreement shall, Notwithstanding anything to the maximum extent feasiblecontrary contained in this Agreement, provide ATS with the rights, benefits, and obligations for if any Like-Kind Notice property for which the closing is so extended. Without limiting the generality action or inaction by Borrower under this §8.15 results in a violation of the foregoingcovenants set forth in §9.1 or §9.2, Diablo and ATS shall promptly after receipt by ATS any waiver or modification of the Like-Kind Notice, negotiate in good faith such covenants made in order to determine cure such violation shall require the portion written consent of the Purchase Price attributable to the Diablo Assets which are to be the subject of like-kind exchange and, in the event they are unable to so agree on such amount, it shall be determined by arbitration in accordance with the provisions of Section 9.15 and not materially inconsistent with the appraisal undertaken pursuant to Section 2.3. If such determination has not been made on or prior to the Closing, ATS shall transfer to the "qualified intermediary" the amount proposed by Diablo in the Like-Kind Notice, subject to an agreement by the "qualified intermediary" to remit to Diablo the excess, if any, of the amount so transferred over the amount as finally determined by the arbitratorLKE Required Lenders.

Like-Kind Exchanges. Diablo shall have The Company and Seller acknowledge and agree that Seller may elect no later than five (5) days prior to the right, but not the obligationClosing Date, to effect the transfer execute and conveyance of the Diablo Assetsassign to an exchange facilitator, qualified intermediary, exchange accommodation titleholder or similar entity its interest in whole or in part, as part of one or more exchanges under Section 1031 of the Code, including the delay in Closing of escrow for those Assets subject to the exchange. If Diablo so elects, it shall provide notice to ATS of its election (the "Like-Kind Notice"), setting forth in reasonable detail which portion or portions of the Diablo Assets are to be so treated. In such event, Diablo (i) may at any time at or prior to Closing assign its rights, in whole or in part, under this Agreement with respect to such Diablo Assets any of the Properties specified by Seller (the "Excluded Properties") to facilitate a like-kind exchange of the Excluded Properties in a transaction or transactions which are intended to qualify for treatment as a tax-deferred like-kind exchange pursuant to the provisions of Section 1031 of the Internal Revenue Code (a "qualified intermediary" 1031 Exchange"). Subject to Section 19, Seller's election to proceed with a 1031 Exchange of such Properties may include transfers of equity interests in entities, the merger and/or consolidation of entities and/or the creation of other entities such as defined single member limited liability companies. If Seller so elects, the Company shall cooperate (at no expense or liability to it) in Treas. Reg. ss.1.1031(k)-1(g)(4), subject to all effectuating the 1031 Exchange of the rights such Properties and obligations hereunder of ATS, and (ii) shall promptly provide written notice of in implementing any such assignment to ATS. No such assignment shalland/or execution of any documentation, however, relieve Diablo of its obligations under this Agreement. If Diablo shall have given a Like-Kind Notice, ATS shall provided that (i) promptly provide Diablo Seller shall indemnify the Company for all direct costs and expenses incurred by the Company in connection with written acknowledgment an intended or effectuated 1031 Exchange of such noticeProperties, (ii) at the ClosingCompany shall not be obligated to take title to any other property, convey nor shall this Section 18.01 affect in any manner Seller's obligations or the Purchase Price for the Diablo Assets Company's rights and benefits under this Agreement (or such portion of them as shall have been designated in writing by Diablo) except to the "qualified intermediary" rather than extent that each such Property shall no longer be subject to Diablo (which conveyance shall, to such extent, discharge the obligation provisions of ATS to deliver such Purchase Price (or portion thereofthis Agreement), and (iii) at it is expressly understood that the request of Diablo extend consummation by Seller or the closing of escrow for all or ability by the electing party to consummate its intended 1031 Exchange is not a portion of those assets subject condition precedent to Seller's obligation to consummate the Like-Kind Notice for a period not to exceed one yearClosing. Should The Cap shall be proportionately reduced upon the closing for any Like-Kind Notice properties be so extended, Diablo and ATS shall enter into an agreement reasonably acceptable to each party which agreement shall, to the maximum extent feasible, provide ATS with the rights, benefits, and obligations for any Like-Kind Notice property for which the closing is so extended. Without limiting the generality occurrence of the foregoing, Diablo and ATS shall promptly after receipt by ATS of the Like-Kind Notice, negotiate transactions contemplated in good faith in order to determine the portion of the Purchase Price attributable to the Diablo Assets which are to be the subject of like-kind exchange and, in the event they are unable to so agree on such amount, it shall be determined by arbitration in accordance with the provisions of this Section 9.15 and not materially inconsistent with the appraisal undertaken pursuant to Section 2.3. If such determination has not been made on or prior to the Closing, ATS shall transfer to the "qualified intermediary" the amount proposed by Diablo in the Like-Kind Notice, subject to an agreement by the "qualified intermediary" to remit to Diablo the excess, if any, of the amount so transferred over the amount as finally determined by the arbitrator18.01.

Like-Kind Exchanges. Diablo shall have the right, but not the obligation, to effect the transfer and conveyance of the Diablo Assets, in whole or in part, as part of one or more exchanges under Section 1031 of the Code, including the delay in Closing of escrow for those Assets subject to the exchange. If Diablo so elects, it shall provide notice to ATS of its election (the "Like-Kind Notice"), setting forth in reasonable detail which portion or portions of the Diablo Assets are to be so treated. In such event, Diablo (i) may at any time at or prior to Closing assign its rights, in whole or in part, under this Agreement with respect to such Diablo Assets to a "qualified intermediary" as defined in Treas. Reg. ss.1.1031(k)-1(g)(4(S) 1.1031(k)-1(g)(4), subject to all of the rights and obligations hereunder of ATS, and (ii) shall promptly provide written notice of such assignment to ATS. No such assignment shall, however, relieve Diablo of its obligations under this Agreement. If Diablo shall have given a Like-Kind Notice, ATS shall (i) promptly provide Diablo with written acknowledgment of such notice, (ii) at the Closing, convey the Purchase Price for the Diablo Assets (or such portion of them as shall have been designated in writing by Diablo) to the "qualified intermediary" rather than to Diablo (which conveyance shall, to such extent, discharge the obligation of ATS to deliver such Purchase Price (or portion thereof), and (iii) at the request of Diablo extend the closing of escrow for all or a portion of those assets subject to the Like-Kind Notice for a period not to exceed one year. Should the closing for any Like-Kind Notice properties be so extended, Diablo and ATS shall enter into an agreement reasonably acceptable to each party which agreement shall, to the maximum extent feasible, provide ATS with the rights, benefits, and obligations for any Like-Kind Notice property for which the closing is so extended. Without limiting the generality of the foregoing, Diablo and ATS shall promptly after receipt by ATS of the Like-Kind Notice, negotiate in good faith in order to determine the portion of the Purchase Price attributable to the Diablo Assets which are to be the subject of like-kind exchange and, in the event they are unable to so agree on such amount, it shall be determined by arbitration in accordance with the provisions of Section 9.15 and not materially inconsistent with the appraisal undertaken pursuant to Section 2.3. If such determination has not been made on or prior to the Closing, ATS shall transfer to the "qualified intermediary" the amount proposed by Diablo in the Like-Kind Notice, subject to an agreement by the "qualified intermediary" to remit to Diablo the excess, if any, of the amount so transferred over the amount as finally determined by the arbitrator.

Like-Kind Exchanges. Diablo shall have the right, but not the obligationThe Company and Contributor acknowledge and agree that Contributor may elect no later than five (5) days prior to any Closing Date, to effect the transfer execute and conveyance assign to an exchange facilitator, qualified intermediary, exchange accommodation titleholder or similar entity its interest in, a separate agreement of sale with respect to any of the Diablo Assets, Tranche 2 Properties or the Tranche 3 Properties specified by Contributor (the "Excluded Properties") to facilitate a like-kind exchange of the Excluded Properties in whole a transaction or in part, transactions which are intended to qualify for treatment as part a tax-deferred like-kind exchange pursuant to the provisions of one or more exchanges under Section 1031 of the Code, including the delay in Closing of escrow for those Assets Internal Revenue Code (a "1031 Exchange"). Each Excluded Property shall no longer be subject to the exchangeprovisions of this Agreement, and the Tranche 2 or Tranche 3 Consideration and the Tranche 2 or Tranche 3 Cash Portion of the Sales Price shall be reduced by the Contributed Equity Value of each Excluded Property. Subject to Section 19, Contributor's election to proceed with a 1031 Exchange of the Excluded Properties may include transfers of equity interests in entities, the merger and/or consolidation of entities and/or the creation of other entities such as single member limited liability companies. If Diablo Contributor so elects, it the Company shall provide notice cooperate (at no expense or liability to ATS of its election (it) in effectuating the "Like-Kind Notice"), setting forth in reasonable detail which portion or portions 1031 Exchange of the Diablo Assets are to be so treated. In Excluded Properties and in implementing any such eventassignment and/or execution of any documentation, Diablo provided that (i) may at any time at Contributor shall indemnify the Company for all direct costs and expenses incurred by the Company in connection with an intended or prior to Closing assign its rights, in whole or in part, under this Agreement with respect to such Diablo Assets to a "qualified intermediary" as defined in Treas. Reg. ss.1.1031(k)-1(g)(4), subject to all effectuated 1031 Exchange of the rights and obligations hereunder of ATS, and (ii) shall promptly provide written notice of such assignment to ATS. No such assignment shall, however, relieve Diablo of its obligations under this Agreement. If Diablo shall have given a Like-Kind Notice, ATS shall (i) promptly provide Diablo with written acknowledgment of such noticean Excluded Property, (ii) at the ClosingCompany shall not be obligated to take title to any other property, convey nor shall this Section 18.01 affect in any manner Contributor's obligations or the Purchase Price for the Diablo Assets Company's rights and benefits under this Agreement (or such portion of them as shall have been designated in writing by Diablo) except to the "qualified intermediary" rather than extent that each Excluded Property shall no longer be subject to Diablo (which conveyance shall, to such extent, discharge the obligation provisions of ATS to deliver such Purchase Price (or portion thereofthis Agreement), and (iii) at it is expressly understood that the request of Diablo extend consummation by Contributor or the closing of escrow for all or a portion of those assets subject to the Like-Kind Notice for a period not to exceed one year. Should the closing for any Like-Kind Notice properties be so extended, Diablo and ATS shall enter into an agreement reasonably acceptable to each party which agreement shall, to the maximum extent feasible, provide ATS with the rights, benefits, and obligations for any Like-Kind Notice property for which the closing is so extended. Without limiting the generality of the foregoing, Diablo and ATS shall promptly after receipt ability by ATS of the Like-Kind Notice, negotiate in good faith in order to determine the portion of the Purchase Price attributable to the Diablo Assets which are to be the subject of like-kind exchange and, in the event they are unable to so agree on such amount, it shall be determined by arbitration in accordance with the provisions of Section 9.15 and not materially inconsistent with the appraisal undertaken pursuant to Section 2.3. If such determination has not been made on or prior to the Closing, ATS shall transfer to the "qualified intermediary" the amount proposed by Diablo in the Like-Kind Notice, subject to an agreement by the "qualified intermediary" to remit to Diablo the excess, if any, of the amount so transferred over the amount as finally determined by the arbitrator.the