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 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

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 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.