Section 1031 Exchanges. Purchaser and Seller agree that, at either Purchaser’s or Seller’s sole election, this transaction may be structured as an exchange of like-kind properties under Section 1031 of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and proposed regulations thereunder. The parties agree that if either wishes to make such election, it must do so by written notice to the other party at least five (5) business days prior to the Closing Date. If either so elects, the other shall reasonably cooperate, provided any such exchange is consummated pursuant to an agreement that is mutually acceptable to Purchaser and Seller and which shall be executed and delivered on or before the Closing Date. The electing party shall in all events be responsible for all costs and expenses related to the Section 1031 exchange and shall fully indemnify, defend and hold the other harmless from and against any and all liability, claim, damages, expenses (including reasonable attorneys’ fees, expenses and disbursements), proceedings and causes of action of any kind or nature whatsoever arising out of, connected with or in any manner related to such 1031 exchange that would not have been incurred by the non-electing party if the transaction were a purchase for cash. In no event shall any party be required to take record title to any property other than the Property in connection with such transaction.
Section 1031 Exchanges. Purchaser and Seller agree that, at either Purchaser’s or Seller’s sole election, this transaction may be structured as an exchange of like-kind properties under Section 1031 of the Code, and the regulations and proposed regulations thereunder. The parties agree that if either wishes to make such election, it must do so by written notice to the other party at least five (5) Business Days prior to the Closing Date. If either so elects, the other shall reasonably cooperate, provided any such exchange is consummated pursuant to an agreement that is mutually acceptable to Purchaser and Seller and which shall be executed and delivered on or before the Closing Date. The electing party shall in all events be responsible for all liability, costs and expenses related to the Section 1031 exchange and shall fully indemnify, defend and hold the other harmless from and against any and all liability, claim, damages, expenses (including reasonable attorneys’ fees, expenses and disbursements), proceedings and causes of action of any kind or nature whatsoever arising out of, connected with or in any manner related to such 1031 exchange that would not have been incurred by the non-electing party if the transaction were a purchase for cash. In no event shall any party be required to take record title to any property other than the Property in connection with such transaction, nor shall the non-electing party be required to take an assignment of the purchase agreement for the replacement property. Seller shall not by any agreement or acquiescence to an exchange have its rights under this Agreement affected or diminished in any manner or be responsible for compliance with or be deemed to have warranted to Purchaser that the exchange in fact complies with the Code.
Section 1031 Exchanges. In order to facilitate Borrower’s transactions pursuant to Section 1031 of the Code, the Administrative Agent shall from time to time, on behalf of the Banks, accept a pledge of membership interests in a limited liability company 100% owned directly or indirectly by the Borrower as security for a specified amount of the outstanding indebtedness (the “secured indebtedness”), which limited liability company owns property which Borrower desires to sell in connection with a like-kind exchange intended to qualify for treatment under Section 1031 of the Code. Such pledge shall be substantially in the form of the pledge agreement attached hereto as Exhibit J. Administrative Agent acknowledges that the Borrower may assign said membership interests to a qualified intermediary and that, upon such assignment, the qualified intermediary will agree to accept responsibility for repayment of, and is expected to repay, the secured indebtedness as part of such exchange. Each pledge shall be released automatically (i) upon the sale of such membership interests or underlying property in the exchange (other than transfer to a qualified intermediary) and repayment of the secured indebtedness, or (ii) upon any prepayment of the Loans in an amount equal to or greater than the secured indebtedness secured by such pledge and which Borrower has designated as a prepayment of such indebtedness. The Administrative Agent agrees to accept repayment of the secured indebtedness from the proceeds of such sale. The Borrower and EQR shall remain obligated for all Obligations notwithstanding the pledge. Upon receipt from the Internal Revenue Service, the Borrower shall deliver to Administrative Agent a copy of a private letter ruling from the Internal Revenue Service to the Borrower with respect to a proposed Section 1031 exchange employing the proposed structure, it being understood that the Administrative Agent shall not disclose the same (subject to Section 9.15) unless and until the same shall be published or otherwise made generally available by the Internal Revenue Service. Notwithstanding anything contained herein to the contrary, any party hereto (and any of its employees, representatives and other agents) may disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure of this transaction.
Section 1031 Exchanges. If any Member desires to defer income recognition in connection with the sale of an asset by the Company under Code Section 1031, and the Managers so approve, but one or more other Members do not desire to do so with respect to their indirect economic interest in such asset, such other Members agree to cooperate with such Member and the Managers in restructuring the sale of such asset as a like-kind exchange under Code Section 1031 with respect to the indirect economic interest in such asset of such Member, to the extent possible, provided, however, that amount of the cash received by such other Members in connection with such restructured sale is the same as it would have been (and is received not later than it would have been received) if the sale were not restructured as a like-kind exchange.
Section 1031 Exchanges. Notwithstanding anything to the contrary in this Agreement, each Affiliate Seller may transfer its rights or obligations under this Agreement to a party acting as “Qualified Intermediary”, as defined in Section 1031(k)-1(g)(4) of the Federal Income Tax Regulations (the “Intermediary”), provided that: (i) notwithstanding such assignment, in any event Buyer may proceed directly against the Affiliate Seller to enforce Buyer’s rights under this Agreement, to the extent permitted under this Agreement, without the need to join the Intermediary as a party; (ii) notwithstanding any such assignment the Transferred Real Property shall be conveyed directly by the Affiliate Seller to the Real Property Purchaser as provided in this Agreement; (iii) Buyer’s performance of any of its obligations to or in favor of the Intermediary shall be treated as performance to or in favor of the Affiliate Seller; (iv) Affiliate Seller shall provide a copy of the instrument by which any such assignment to the Intermediary is made to Buyer immediately after its execution; and (v) neither Buyer nor Real Property Purchaser shall be a party to such assignment to the Intermediary. In the event either Affiliate Seller so assigns its rights or obligations under this Agreement to the Intermediary, Buyer shall or shall cause Real Property Purchaser to (a) render performance of all of Buyer’s obligations under this Agreement to the Intermediary, (b) deposit the purchase price for the applicable Transferred Real Property in accordance with the instructions of the Intermediary, and (c) allow the Affiliate Seller to proceed directly against Buyer without the need to join the Intermediary as a party to an action against Buyer in the event Buyer breaches any of its obligations under this Agreement. The purpose of an assignment permitted by the Affiliate Sellers pursuant to this Section is solely to allow the Affiliate Seller to qualify the transfer of the Transferred Real Property for the benefits of Section 1031 of the Code. Qualification for Section 1031 treatment is solely the responsibility of the Affiliate Sellers, and neither Buyer nor the Real Property Purchaser shall be responsible for such qualification.
Section 1031 Exchanges. Each party acknowledges that the other party may desire to acquire or sell any or all of the Theatres in one or more transactions intending to qualify in whole or in part for nonrecognition of gain pursuant to Section 1031 of the Code. If either party so desires, it shall provide the other party with one or more written statements prior to Closing stating its intention to qualify the transfer of the Theatres specified in such statement as a tax-deferred exchange under Section 1031 of the Code. Each party agrees to cooperate in good faith with the other party by executing such documents, assignments, acknowledgements, instruments, deeds or escrow instructions requested by such party in furtherance of its intended treatment of any such transfers pursuant to Section 1031 of the Code, including the use a deferred exchange as provided in Treas. Reg. §1.1031(k)-1 or a “parking transaction” as described in Rev. Proc 2000-37, 2000-2 CB 308. Such cooperation shall not relieve any party of any responsibility, representations, warranty, covenant or other obligation of such party to the other party pursuant to this Agreement or any Ancillary Instrument.
Section 1031 Exchanges. A. Notwithstanding anything contained herein to the contrary, in accordance with the terms set forth herein, either party (the “Exchanging Party”) shall be entitled, at its option, to structure the transfer of one or more Properties to Purchaser as part of a non-simultaneous tax-deferred “like-kind” exchange (including without limitation a “reverse exchange”) under Section 1031 of the Code (a “Like-Kind Exchange”) with respect to the Exchanging Party involving, in whole or part, real property other than the Properties.
B. If the Exchanging Party desires to effectuate a tax-deferred exchange as aforesaid, the Exchanging Party shall so notify the other party (the “Cooperating Party”) no later than ten (10) days prior to the applicable Closing Date and shall at that time present to the Cooperating Party a written “Like-Kind Exchange Agreement” in form reasonably acceptable to both parties and which both parties shall execute. The Cooperating Party shall reasonably cooperate with the Exchanging Party to assist the Exchanging Party in accomplishing a Like-Kind Exchange; provided, however, that the Cooperating Party shall incur no extra expense, no delays and no extra risks, and the Like-Kind Exchange Agreement shall contain such indemnities and other provisions as will reasonably insulate the Cooperating Party from liability in connection with the Like-Kind Exchange. The Cooperating Party makes no representations or warranties to the Exchanging Party concerning the tax consequences of the Exchanging Party’s actions in this regard. Apart from the obligation to sign the Like-Kind Exchange Agreement and convey or acquire (as the case may be) the Properties as provided herein, the Cooperating Party shall have no obligation or liability in connection with the Like-Kind Exchange and the Exchanging Party shall indemnify and hold the Cooperating Party harmless from any damages, liability and claims, including reasonable attorney’s fees incurred by the Cooperating Party, in connection therewith. The parties hereby agree that the Cooperating Party shall not take title to any real estate other than the Properties (or any individual Property thereof). The indemnity in this Section 12(B) shall survive each Closing (including the Final Closing) and delivery of the deeds or other transfer instruments and shall not be merged therein.
Section 1031 Exchanges. Buyer and Sellers agree that, at either Buyer’s or any Seller’s sole election, this Transaction may be structured as an exchange of like-kind properties under Section 1031 of the Tax Code, and the regulations and proposed regulations thereunder. The parties agree that if either wishes to make such election, it must do so by written notice to the other party at least five (5) Business Days prior to the Closing Date. If any so elects, the others shall reasonably cooperate, provided any such exchange is consummated pursuant to an agreement that is mutually acceptable to Buyer and Sellers and which shall be executed and delivered on or before the Closing Date. The electing party shall in all events be responsible for all costs and expenses related to the Section 1031 exchange and shall fully indemnify, defend and hold the other harmless from and against any and all Liabilities arising out of, connected with or in any manner related to such 1031 exchange that would not have been incurred by the non-electing party if the transaction were a purchase for cash. In no event shall any party be required to take record title to any property other than the Property in connection with such transaction.
Section 1031 Exchanges. On or before the end of the 180 day period during which any Section 1031 Exchange is to be completed, deliver to the Administrative Agent a certificate from a Responsible Officer certifying that:
(a) (i) the aggregate value of (A) the Section 1031 Exchanged Properties sold by the Borrower or applicable Restricted Subsidiary in connection with such Section 1031 Exchange, plus (B) if applicable, the principal amount of the Section 1031 Promissory Note loaned by the Borrower or applicable Restricted Subsidiary to the applicable Section 1031 Counterparty, shall be substantially equivalent or less than (ii) the aggregate value of (A) the Section 1031 Replacement Property received by the Borrower or applicable Restricted Subsidiary in connection with such Section 1031 Exchange, plus (B) if applicable, the cash repayment (whether in full or in part) made to the Borrower or applicable Restricted Subsidiary in respect of a Section 1031 Promissory Note, plus (C) additional cash, if any, received by the Borrower or applicable Restricted Subsidiary in exchange for the Section 1031 Exchanged Property; and
(b) any rights, title or interest under (i) any purchase agreement or similar agreement to purchase Section 1031 Replacement Property or (ii) any sale agreement or similar agreement to sell Section 1031 Exchanged Properties, in each case which have been assigned to a Section 1031 Counterparty by any Credit Party or any Restricted Subsidiary in connection with a Section 1031 Exchange, have been re-assigned to such Credit Party or Restricted Subsidiary.”
(k) Section 9.3 of the Credit Agreement is hereby amended by (i) deleting the word “and” at the end of clause (p) of such Section, (ii) replacing the reference to clause (p) in the last sentence of such Section with a reference to clause (r), (iii) re-lettering clause (q) of such Section as clause (r) and (iv) inserting the following new clause (q) immediately following clause (p) of such Section: “(q) any Investment evidenced by a Section 1031 Promissory Note so long as (A) no Default exists at the time when such Section 1031 Promissory Note is issued and (B) the Borrower delivers to the Administrative Agent promptly after execution thereof copies of each material agreement, instrument, certificate or other document executed in connection with the applicable Section 1031 Exchange, in each case certified by a Responsible Officer of the Borrower; provided that (i) the aggregate principal amount of any such Section 1031 P...
Section 1031 Exchanges. Investor hereto agrees to cooperate with Welltower in effecting one or more Section 1031 Exchanges with respect to the Facilities transferred at the Closing, including executing and delivering any and all documents required by one or more exchange trustees, qualified intermediaries or exchange accommodation titleholders retained by Welltower, and Welltower shall have the right to assign this Agreement to an entity established in order to effectuate such exchange (including a qualified intermediary, an exchange accommodation title holder or one or more single member limited liability companies that are owned by any of the foregoing persons); provided, however, that (a) Investor shall not be obligated to incur any liability, cost, expense, delay or other detriment in connection with the implementation of any such Section 1031 Exchange unless Welltower agrees to reimburse and/or indemnify Investor for any such liability, cost, expense, delay or other detriment and (b) Welltower will not be relieved from its obligations under this Agreement following any such assignment.
