Common use of Code Section 1031 Exchange Clause in Contracts

Code Section 1031 Exchange. (i) As soon as practicable, but in any event no later than 60 days, following the date of this Agreement, (a) Monster shall identify the Monster Non-Energy Assets that are described in Section 1031(a)(1) of the Code and that are not described in Section 1031(a)(2) of the Code (the “Monster Eligible Assets”), (b) KO shall identify the KO Energy Assets that are described in Section 1031(a)(1) of the Code and are not described in Section 1031(a)(2) of the Code (the “KO Eligible Assets”), and (c) each of Monster and KO shall deliver a statement to the other listing such Party’s respective Eligible Assets and setting forth a good faith estimate of the fair market value of each such asset (provided that the valuation methods used by Monster and KO to estimate the fair market values of such assets shall be substantially identical). Each Party shall have an opportunity to review the statement provided by the other Party and must agree that the assets listed by the Parties constitute Eligible Assets prior to effecting an exchange transaction pursuant to Section 1031 of the Code as described in Section 7.8(e)(ii). (ii) Monster and KO shall each use commercially reasonable efforts to structure the transactions contemplated by this Agreement and the Transaction Agreement in such a manner as to effect an exchange of all or a portion of the Monster Eligible Assets for all or a portion of the KO Eligible Assets in an exchange of like kind property described in Section 1031(a)(1) of the Code (the “Section 1031 Exchange”), but only if and to the extent that the assets to be exchanged in the Section 1031 Exchange are of equal value. To the extent supported by applicable Law, the Parties shall consider in good faith the transfer of an undivided interest in Section 1031 eligible assets to equalize value. (iii) Notwithstanding anything else in this Section 7.8(e), neither Monster nor KO shall be required to effect the Section 1031 Exchange if (a) it is reasonably possible, as determined in the sole discretion of such Party, that effecting the Section 1031 Exchange may cause the Merger, the acquisition and issuance of the Shares and the KO Asset Transfer, taken together, to not qualify as an “exchange” within the meaning of Section 351 of the Code, or (b) Monster has not obtained an opinion of ▇▇▇▇▇ Day, and KO has not obtained an opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in each case, dated prior to or as of the effective date of the Section 1031 Exchange, on the basis of certain facts and reasonable representations and assumptions set forth in such opinion, that, for U.S. federal income tax purposes, the Section 1031 Exchange should constitute an exchange described in Section 1031(a)(1) of the Code. For the avoidance of doubt, in no event shall the failure or inability to effect the Section 1031 Exchange prevent, delay, or otherwise interfere with the Closing. (iv) In the event of a dispute with respect to this Section 7.8(e), Monster and KO shall each negotiate in good faith in an attempt to reach an agreement. If agreement is not reached within 90 days of the date of this Agreement, Monster and KO shall promptly select an Independent Accounting Firm to resolve such dispute. The determination of the Independent Accounting Firm shall be final and binding upon the parties. The cost of any such Independent Accounting Firm shall be borne equally by Monster and KO.

Code Section 1031 Exchange. (i) As soon as practicable, but in any event no later than 60 days, following the date of this Agreement, (a) Monster shall identify the Monster Non-Energy Assets that are described in Section 1031(a)(1) of the Code and that are not described in Section 1031(a)(2) of the Code (the “Monster Eligible Assets”), (b) KO shall identify the KO Energy Assets that are described in Section 1031(a)(1) of the Code and are not described in Section 1031(a)(2) of the Code (the “KO Eligible Assets”), and (c) each of Monster and KO shall deliver a statement to the other listing such Party’s respective Eligible Assets and setting forth a good faith estimate of the fair market value of each such asset (provided that the valuation methods used by Monster and KO to estimate the fair market values of such assets shall be substantially identical). Each Party shall have an opportunity to review the statement provided by the other Party and must agree that the assets listed by the Parties constitute Eligible Assets prior to effecting an exchange transaction pursuant to Section 1031 of the Code as described in Section 7.8(e)(ii). (ii) Monster and KO shall each use commercially reasonable efforts to structure the transactions contemplated by this Agreement and the Transaction Agreement in such a manner as to effect an exchange of all or a portion of the Monster Eligible Assets for all or a portion of the KO Eligible Assets in an exchange of like kind property described in Section 1031(a)(1) of the Code (the “Section 1031 Exchange”), but only if and to the extent that the assets to be exchanged in the Section 1031 Exchange are of equal value. To the extent supported by applicable Law, the Parties shall consider in good faith the transfer of an undivided interest in Section 1031 eligible assets to equalize value. (iii) Notwithstanding anything else in this Section 7.8(e), neither Monster nor KO shall be required to effect the Section 1031 Exchange if (a) it is reasonably possible, as determined in the sole discretion of such Party, that effecting the Section 1031 Exchange may cause the Merger, the acquisition and issuance of the Shares and the KO Asset Transfer, taken together, to not qualify as an “exchange” within the meaning of Section 351 of the Code, or (b) Monster has not obtained an opinion of ▇▇▇▇▇ Day, and KO ▇▇ has not obtained an opinion of Skadden▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in each case, dated prior to or as of the effective date of the Section 1031 Exchange, on the basis of certain facts and reasonable representations and assumptions set forth in such opinion, that, for U.S. federal income tax purposes, the Section 1031 Exchange should constitute an exchange described in Section 1031(a)(1) of the Code. For the avoidance of doubt, in no event shall the failure or inability to effect the Section 1031 Exchange prevent, delay, or otherwise interfere with the Closing. (iv) In the event of a dispute with respect to this Section 7.8(e), Monster and KO shall each negotiate in good faith in an attempt to reach an agreement. If agreement is not reached within 90 days of the date of this Agreement, Monster and KO shall promptly select an Independent Accounting Firm to resolve such dispute. The determination of the Independent Accounting Firm shall be final and binding upon the parties. The cost of any such Independent Accounting Firm shall be borne equally by Monster and KO.