Common use of Like-Kind Exchanges Clause in Contracts

Like-Kind Exchanges. 11.12.1 Notwithstanding anything contained herein to the contrary, Purchaser acknowledges that Seller may designate the Property as relinquished property to consummate a like-kind exchange or reverse like-kind exchange under Section 1031 of the Code (an “Exchange”) with respect to property that Seller will acquire either prior to or within one hundred eighty (180) days after Closing (the “Replacement Property”). In the event that Seller designates the Property as relinquished property to consummate an Exchange with respect to the Replacement Property through the use of a qualified intermediary (“Intermediary”) and/or an Exchange Accommodation Titleholder (“EAT”), Purchaser shall cooperate in structuring the transaction as an Exchange for the benefit of Seller and Purchaser agrees to render all required performance under this Agreement to 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 1031 Assignee shall effect a release of 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”). 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 cooperate in structuring the transaction as an Exchange for the benefit of Purchaser and Seller agrees to render all required performance under this Agreement to such 1031 Assignee to the extent reasonably directed by Purchaser and to accept performance of all of Purchaser’s obligations by the 1031 Assignee. Seller agrees that performance by the 1031 Assignee will be treated as performance by Purchaser, and Purchaser agrees that Seller’s performance to the 1031 Assignee will be treated as performance to Purchaser. No assignment of rights under this Agreement to a 1031 Assignee shall effect a release of Purchaser from obligations under this Agreement.

Like-Kind Exchanges. 11.12.1 Notwithstanding anything contained herein Diablo shall have the right, but not the obligation, to effect the contrarytransfer and conveyance of the Diablo Assets, Purchaser acknowledges that Seller may designate the Property in whole or in part, as relinquished property to consummate a like-kind exchange part of one or reverse like-kind exchange more exchanges under Section 1031 of the Code 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 (an “Exchange”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 property that Seller will acquire either prior such Diablo Assets to or within one hundred eighty (180) days after Closing (the “Replacement Property”)a "qualified intermediary" as defined in Treas. In the event that Seller designates the Property as relinquished property to consummate an Exchange with respect to the Replacement Property through the use of a qualified intermediary (“Intermediary”) and/or an Exchange Accommodation Titleholder (“EAT”Reg. ss.1.1031(k)-1(g)(4), Purchaser shall cooperate in structuring the transaction as an Exchange for the benefit of Seller and Purchaser agrees subject to render all required performance under this Agreement to 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 the rights and obligations by the 1031 Assignee. Purchaser agrees that performance by the 1031 Assignee will be treated as performance by Sellerhereunder of ATS, and Seller agrees that Purchaser’s performance (ii) shall promptly provide written notice of such assignment to the 1031 Assignee will be treated as performance to SellerATS. No such assignment shall, however, relieve Diablo of rights under this Agreement to a 1031 Assignee shall effect a release of Seller from its obligations under this Agreement. 11.12.2 Notwithstanding anything contained herein . 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 contrary"qualified intermediary" rather than to Diablo (which conveyance shall, Seller acknowledges that Purchaser may designate to such extent, discharge the Property as replacement 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 consummate an Exchange 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 respect the provisions of Section 9.15 and not materially inconsistent with the appraisal undertaken pursuant to property that Seller will relinquish either Section 2.3. If such determination has not been made on or prior to or within one hundred eighty (180) days after Closing (the “Relinquished Property”). In the event that Purchaser designates the Property as replacement property to consummate an Exchange with respect Closing, ATS shall transfer to the Relinquished Property through "qualified intermediary" the use of a 1031 Assigneeamount proposed by Diablo in the Like-Kind Notice, Seller shall cooperate in structuring the transaction as subject to an Exchange for the benefit of Purchaser and Seller agrees to render all required performance under this Agreement to such 1031 Assignee to the extent reasonably directed by Purchaser and to accept performance of all of Purchaser’s obligations agreement by the 1031 Assignee. Seller agrees that performance "qualified intermediary" to remit to Diablo the excess, if any, of the amount so transferred over the amount as finally determined by the 1031 Assignee will be treated as performance by Purchaser, and Purchaser agrees that Seller’s performance to the 1031 Assignee will be treated as performance to Purchaser. No assignment of rights under this Agreement to a 1031 Assignee shall effect a release of Purchaser from obligations under this Agreementarbitrator.