Common use of Seller’s Tax Deferred Exchange Clause in Contracts

Seller’s Tax Deferred Exchange. Notwithstanding any terms in this Contract to the contrary, Seller shall have the right to exchange the Property to qualify as a tax-deferred exchange under the provisions of Section 1031 of the Internal Revenue Code of 1986, as amended (the “Code”) and the Treasury Regulations thereunder. It is understood and agreed that Seller shall have the option, exercisable by giving notice to Buyer at any time prior to the Closing Date, of effecting a like-kind exchange of all or any portion of the Property by assigning (the “Assignment”) its rights in this Agreement to a qualified intermediary (the “Intermediary”) who shall contract with Seller to deliver to Seller in exchange therefor property or other consideration (“Exchange Property”), at such times as shall be designated in the contract between Seller and the Intermediary. Upon the Assignment, the Intermediary shall be substituted for Seller as the seller of the property. Buyer agrees to accept the Property and all other required performance from the Intermediary and to render its performance of all of its obligations to the Intermediary; provided, that Seller shall, at the Intermediary’s direction, nevertheless convey the Property to Buyer in accordance with (and as limited by) the terms of this Agreement. Buyer agrees that performance by the Intermediary will be treated as performance by the seller under this Agreement, and Seller agrees that Buyer’s performance to the Intermediary will be treated as performance to the seller under this Agreement. Buyer shall reasonably cooperate with Seller and execute such documents as are reasonably necessary for Seller to effect such exchange; provided, that the contemplated exchange shall not delay any of the time periods or other obligations of Seller hereunder, including, without limitation, those related to the Closing and the scheduled date for the same. Seller shall unconditionally guarantee the full and timely performance by the Intermediary of each and every one of the representations, warranties, indemnities, obligations and undertakings (collectively, the “Undertakings”) of the Intermediary hereunder. As guarantor, Seller shall be treated as a primary obligor with respect to the Undertakings, and, in the event of a breach of or claim with respect to an Undertaking, Buyer may proceed directly against Seller on this guarantee without the need to join the Intermediary as a party to any action against Seller. Seller unconditionally waives any defense that it might have as guarantor that it would not have if it had made or undertaken the Undertakings directly. In the event of the breach of any Undertaking by Seller or the Intermediary (whether such Undertaking is express or implied) or in the event of any claim upon any indemnity of Seller or the Intermediary, Buyer’s exclusive recourse shall be against Seller; Buyer shall have no recourse of any type against the Intermediary arising from this transaction. Seller hereby agrees to indemnify, defend and hold Buyer harmless of and from any and all liabilities, claims, demands and expenses of any kind or nature (including, without limitation, reasonable attorney’s fees) which it reasonably incurs or suffers as a result of or in connection with a like-kind exchange contemplated by this Section. Seller hereby acknowledges and agrees that Buyer neither warrants nor represents that an exchange of the Property for the Exchange Property will qualify for tax deferred exchange treatment pursuant to Section 1031 of the Internal Revenue Code of 1986 or otherwise.

Seller’s Tax Deferred Exchange. Notwithstanding any terms in this Contract to the contrary, Seller shall have the right to exchange the Property to qualify as a tax-deferred exchange under the provisions of Section 1031 of the Internal Revenue Code of 1986, as amended (the “Code”) and the Treasury Regulations thereunder. It is understood and agreed that Seller shall have the option, exercisable by giving notice to Buyer at any time prior to the Closing Date, of effecting a like-kind exchange of all or any portion of the Property by assigning (the “Assignment”) its rights in this Agreement to a qualified intermediary (the “Intermediary”) who shall contract with Seller to deliver to Seller in exchange therefor property or other consideration (“Exchange Property”), at such times as shall be designated in the contract between Seller and the Intermediary. Upon the Assignment, the Intermediary shall be substituted for Seller as the seller of the property. Buyer agrees to accept the Property and all other required performance from the Intermediary and to render its performance of all of its obligations to the Intermediary; provided, that Seller shall, at the Intermediary’s direction, nevertheless may convey the Property to Buyer in accordance with (and as limited by) the terms of this Agreement. Buyer agrees that performance by the Intermediary will be treated as performance by the seller under this Agreement, and Seller agrees that Buyer’s performance to the Intermediary will be treated as performance to the seller under this Agreement. Buyer shall reasonably cooperate with Seller and execute such documents as are reasonably necessary for Seller to effect such exchange; provided, that the contemplated exchange shall not delay any of the time periods or other obligations of Seller hereunder, including, without limitation, those related to the Closing and the scheduled date for the same. Seller shall unconditionally guarantee the full and timely performance by the Intermediary of each and every one of the representations, warranties, indemnities, obligations and undertakings (collectively, the “Undertakings”) of the Intermediary hereunder. As guarantor, Seller shall be treated as a primary obligor with respect to the Undertakings, and, in the event part of a breach of or claim with respect to an Undertaking, Buyer may proceed directly against Seller on this guarantee without the need to join the Intermediary as a party to any action against Seller. Seller unconditionally waives any defense that it might have as guarantor that it would not have if it had made or undertaken the Undertakings directly. In the event of the breach of any Undertaking by Seller or the Intermediary (whether such Undertaking is express or implied) or in the event of any claim upon any indemnity of Seller or the Intermediary, Buyer’s exclusive recourse shall be against Seller; Buyer shall have no recourse of any type against the Intermediary arising from this transaction. Seller hereby agrees to indemnify, defend and hold Buyer harmless of and from any and all liabilities, claims, demands and expenses of any kind or nature (including, without limitation, reasonable attorney’s fees) which it reasonably incurs or suffers as a result of or in connection with a like-kind exchange contemplated by this Section. Seller hereby acknowledges and agrees that Buyer neither warrants nor represents that an exchange of the Property for the Exchange Property will qualify for tax deferred exchange treatment for the benefit of Seller pursuant to Section 1031 of the Internal Revenue Code Code. With respect thereto, Seller may assign all of 1986 Seller's contract rights and obligations hereunder to an exchange accommodation titleholder or otherwisea qualified intermediary, as part of, and in furtherance of, such tax deferred exchange. Purchaser agrees to reasonably cooperate in such exchange for the benefit of Seller at no cost, expense or liability to Purchaser and without reduction or alteration of the rights of Purchaser under this Agreement and with respect to Seller; and Purchaser further agrees to execute any and all documents (subject to the reasonable approval of Purchaser's legal counsel) as are reasonably necessary in connection with such exchange at Seller's sole expense provided that Purchaser shall not be required to undertake any liability or obligation in so doing and provided that such exchange does not extend the Closing Date. As part of such exchange, Seller shall convey the Property directly to Purchaser and Purchaser shall not be obligated to acquire or convey any other property as part of such exchange. Seller shall indemnify, hold harmless and defend Purchaser from and against any and all claims, demands, causes of action, liabilities, losses, costs, damages and expenses (including reasonable attorneys' fees and expenses and court costs incurred in defending any such claim or in enforcing this indemnity) that may be incurred by Purchaser and arising out of Purchaser's participation in such exchange for the benefit of Seller, which obligation shall survive the Closing. Notwithstanding the foregoing, should Seller fail to effect a tax deferred exchange as contemplated in this Section 4.8 for any reason, then the sale by Seller of the Property shall be consummated in accordance with terms and conditions of this Agreement just as though the provisions of this Section 4.8 had been omitted from this Agreement, except that Purchaser shall be reimbursed and indemnified from resulting costs and expenses as provided in this Section. Nothing contained in this Section 4.8 shall release Seller of any of its obligations or liabilities under this Agreement, whether accruing before, at or after Closing, nor shall anything contained in this Section 4.8 impose any liability or obligation on Purchaser with respect to the tax consequences of this transaction to Seller.

Seller’s Tax Deferred Exchange. Notwithstanding any terms in this Contract to the contrary, Seller shall have the right to exchange the Property to qualify as a tax-deferred exchange under the provisions of Section 1031 of the Internal Revenue Code of 1986, as amended (the “Code”) and the Treasury Regulations thereunder. It is understood and agreed that Seller shall have the option, exercisable by giving notice to Buyer at any time prior to the Closing Date, of effecting a like-kind exchange of all or any portion of the Property by assigning (the “Assignment”) its rights in this Agreement to a qualified intermediary (the “Intermediary”) who shall contract with Seller to deliver to Seller in exchange therefor property or other consideration (“Exchange Property”), at such times as shall be designated in the contract between Seller and the Intermediary. Upon the Assignment, the Intermediary shall be substituted for Seller as the seller of the property. Buyer agrees to accept the Property and all other required performance from the Intermediary and to render its performance of all of its obligations to the Intermediary; provided, that Seller shall, at the Intermediary’s direction, nevertheless may convey the Property to Buyer in accordance with (and as limited by) the terms of this Agreement. Buyer agrees that performance by the Intermediary will be treated as performance by the seller under this Agreement, and Seller agrees that Buyer’s performance to the Intermediary will be treated as performance to the seller under this Agreement. Buyer shall reasonably cooperate with Seller and execute such documents as are reasonably necessary for Seller to effect such exchange; provided, that the contemplated exchange shall not delay any of the time periods or other obligations of Seller hereunder, including, without limitation, those related to the Closing and the scheduled date for the same. Seller shall unconditionally guarantee the full and timely performance by the Intermediary of each and every one of the representations, warranties, indemnities, obligations and undertakings (collectively, the “Undertakings”) of the Intermediary hereunder. As guarantor, Seller shall be treated as a primary obligor with respect to the Undertakings, and, in the event part of a breach of or claim with respect to an Undertaking, Buyer may proceed directly against Seller on this guarantee without the need to join the Intermediary as a party to any action against Seller. Seller unconditionally waives any defense that it might have as guarantor that it would not have if it had made or undertaken the Undertakings directly. In the event of the breach of any Undertaking by Seller or the Intermediary (whether such Undertaking is express or implied) or in the event of any claim upon any indemnity of Seller or the Intermediary, Buyer’s exclusive recourse shall be against Seller; Buyer shall have no recourse of any type against the Intermediary arising from this transaction. Seller hereby agrees to indemnify, defend and hold Buyer harmless of and from any and all liabilities, claims, demands and expenses of any kind or nature (including, without limitation, reasonable attorney’s fees) which it reasonably incurs or suffers as a result of or in connection with a like-kind exchange contemplated by this Section. Seller hereby acknowledges and agrees that Buyer neither warrants nor represents that an exchange of the Property for the Exchange Property will qualify for tax deferred exchange treatment for the benefit of Seller pursuant to Section 1031 of the Internal Revenue Code Code. Seller may assign all of 1986 Seller’s contract rights and obligations hereunder to an exchange accommodation titleholder or otherwisea qualified intermediary, as part of, and in furtherance of, such tax deferred exchange. Purchaser agrees to assist and cooperate in such exchange for the benefit of Seller at no cost, expense or liability to Purchaser and without reduction or alteration of the rights of Purchaser under this Agreement and with respect to Seller; and Purchaser further agrees to execute any and all documents (subject to the reasonable approval of Purchaser’s legal counsel) as are reasonably necessary in connection with such exchange at Seller’s sole expense provided that Purchaser shall not be required to undertake any material liability or obligation in so doing and provided that such exchange does not extend the Closing Date. As part of such exchange, Seller shall convey the Property directly to Purchaser and Purchaser shall not be obligated to acquire or convey any other property as part of such exchange. Seller shall indemnify, hold harmless and defend Purchaser from and against any and all claims, demands, causes of action, liabilities, losses, costs, damages and expenses (including reasonable attorneys’ fees and expenses and court costs incurred in defending any such claim or in enforcing this indemnity) that may be incurred by Purchaser and arising out of Purchaser’s participation in such exchange for the benefit of Seller, which obligation shall survive the Closing. Notwithstanding the foregoing, should Seller fail to effect a tax deferred exchange as contemplated in this Section 4.8 for any reason, then the sale by Seller of the Property shall be consummated in accordance with terms and conditions of this Agreement just as though the provisions of this Section 4.8 had been omitted from this Agreement, except that Purchaser shall be reimbursed and indemnified from resulting costs and expenses as provided in this Section. Nothing contained in this Section 4.8 shall release Seller of any of its obligations or liabilities under this Agreement, whether accruing before, at or after Closing, nor shall anything contained in this Section 4.8 impose any liability or obligation on Purchaser with respect to the tax consequences of this transaction to Seller.

Seller’s Tax Deferred Exchange. Notwithstanding any terms in this Contract Seller may desire to the contrary, Seller shall have the right to exchange the Property to qualify as effect a tax-deferred exchange under the provisions of Section 1031 of the Internal Revenue Code of 1986, as amended (the “Code”) and the Treasury Regulations thereunder. It is understood and agreed that Seller shall have the option, exercisable by giving notice with respect to Buyer at any time prior to the Closing Date, of effecting a like-kind exchange its disposition of all or any a portion of the Property by assigning (the “AssignmentSeller’s Exchange”) its rights in this Agreement to a qualified intermediary (the “Intermediary”) who shall contract with Seller to deliver to Seller in exchange therefor property or other consideration (“Exchange Property”), at such times as shall be designated in the contract between Seller and the Intermediary. Upon the Assignment, the Intermediary shall be substituted for Seller as the seller of the property. Buyer agrees to accept the Property and all other required performance from the Intermediary and to render its performance of all of its obligations to the Intermediary; provided, that Seller shall, at the Intermediary’s direction, nevertheless convey the Property to Buyer in accordance with (and as limited by) the terms of this Agreement. Buyer agrees that performance by the Intermediary will be treated as performance by the seller under this Agreement, and Seller agrees that Buyer’s performance to the Intermediary will be treated as performance to the seller under this Agreement. Buyer shall reasonably cooperate with Seller and execute such documents as are reasonably necessary for Seller to effect such exchange; provided, that the contemplated exchange shall not delay any of the time periods or other obligations of Seller hereunder, including, without limitation, those related to the Closing and the scheduled date for the same. Seller shall unconditionally guarantee the full and timely performance by the Intermediary of each and every one of the representations, warranties, indemnities, obligations and undertakings (collectively, the “Undertakings”) of the Intermediary hereunder. As guarantor, Seller shall be treated as a primary obligor with respect to the Undertakings, and, in the event of a breach of or claim with respect to an Undertaking, Buyer may proceed directly against Seller on this guarantee without the need to join the Intermediary as a party to any action against Seller. Seller unconditionally waives any defense that it might have as guarantor that it would not have if it had made or undertaken the Undertakings directly. In the event of the breach of any Undertaking by Seller or the Intermediary (whether such Undertaking is express or implied) or in the event of any claim upon any indemnity of Seller or the Intermediary, Buyer’s exclusive recourse shall be against Seller; Buyer shall have no recourse of any type against the Intermediary arising from this transaction. Seller hereby agrees to indemnify, defend and hold Buyer harmless of and from any and all liabilities, claims, demands and expenses of any kind or nature (including, without limitation, reasonable attorney’s fees) which it reasonably incurs or suffers as a result of or in connection with a like-kind exchange contemplated by this Section. Seller hereby acknowledges and agrees that Buyer neither warrants nor represents that an exchange of the Property for the Exchange Property will qualify for tax deferred exchange treatment pursuant to Section 1031 of the Internal Revenue Code Code. Seller’s Exchange will be structured by Seller at its sole cost and expense and Buyer will have no obligation to acquire or enter into the chain of 1986 title to any property other than the Property. Buyer’s sole obligation in connection with Seller’s Exchange shall be to review and execute certain documentation necessary in order to effectuate Seller’s Exchange in accordance with the foregoing and the applicable rules governing such exchanges. Buyer’s cooperation with Seller’s Exchange shall not affect or otherwisediminish Buyer’s rights under this Agreement, delay the closing of this Agreement or be construed as Buyer’s warranty that Seller’s Exchange in fact complies with Section 1031 of the Internal Revenue Code. Buyer shall have the right to review and reasonably approve any documents to be executed by Buyer in connection with Seller’s Exchange. Acceptance of title to the Property from Seller’s designated intermediary shall not modify Seller’s representations, warranties and covenants to Buyer under this Agreement or the survival thereof pursuant to this Agreement. The Warranty Deed and all closing documents shall run directly between Seller and Buyer. Seller shall indemnify and hold Buyer harmless from and against any and all claims, liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees but excluding costs incurred to review the exchange documents) arising from Seller’s Exchange (other than what would have been applicable under this Agreement without Seller’s Exchange) which indemnification obligation shall survive the Close of Escrow. Seller is relying solely upon the advice and counsel of professionals of Seller’s choice in structuring, executing and consummating Seller’s Exchange.

Seller’s Tax Deferred Exchange. Notwithstanding Seller may convey any terms in this Contract to the contrary, Seller shall have the right to exchange the Property to qualify as a tax-deferred exchange under the provisions of Section 1031 one or more of the Internal Revenue Code of 1986, Projects as amended (the “Code”) and the Treasury Regulations thereunder. It is understood and agreed that Seller shall have the option, exercisable by giving notice to Buyer at any time prior to the Closing Date, of effecting a like-kind exchange of all or any portion of the Property by assigning (the “Assignment”) its rights in this Agreement to a qualified intermediary (the “Intermediary”) who shall contract with Seller to deliver to Seller in exchange therefor property or other consideration (“Exchange Property”), at such times as shall be designated in the contract between Seller and the Intermediary. Upon the Assignment, the Intermediary shall be substituted for Seller as the seller of the property. Buyer agrees to accept the Property and all other required performance from the Intermediary and to render its performance of all of its obligations to the Intermediary; provided, that Seller shall, at the Intermediary’s direction, nevertheless convey the Property to Buyer in accordance with (and as limited by) the terms of this Agreement. Buyer agrees that performance by the Intermediary will be treated as performance by the seller under this Agreement, and Seller agrees that Buyer’s performance to the Intermediary will be treated as performance to the seller under this Agreement. Buyer shall reasonably cooperate with Seller and execute such documents as are reasonably necessary for Seller to effect such exchange; provided, that the contemplated exchange shall not delay any of the time periods or other obligations of Seller hereunder, including, without limitation, those related to the Closing and the scheduled date for the same. Seller shall unconditionally guarantee the full and timely performance by the Intermediary of each and every one of the representations, warranties, indemnities, obligations and undertakings (collectively, the “Undertakings”) of the Intermediary hereunder. As guarantor, Seller shall be treated as a primary obligor with respect to the Undertakings, and, in the event part of a breach of or claim with respect to an Undertaking, Buyer may proceed directly against Seller on this guarantee without the need to join the Intermediary as a party to any action against Seller. Seller unconditionally waives any defense that it might have as guarantor that it would not have if it had made or undertaken the Undertakings directly. In the event of the breach of any Undertaking by Seller or the Intermediary (whether such Undertaking is express or implied) or in the event of any claim upon any indemnity of Seller or the Intermediary, Buyer’s exclusive recourse shall be against Seller; Buyer shall have no recourse of any type against the Intermediary arising from this transaction. Seller hereby agrees to indemnify, defend and hold Buyer harmless of and from any and all liabilities, claims, demands and expenses of any kind or nature (including, without limitation, reasonable attorney’s fees) which it reasonably incurs or suffers as a result of or in connection with a like-kind exchange contemplated by this Section. Seller hereby acknowledges and agrees that Buyer neither warrants nor represents that an exchange of the Property for the Exchange Property will qualify for tax deferred exchange treatment for THE benefit of Seller pursuant to Section 1031 of the Internal Revenue Code Code. Seller may assign all contract rights and obligations hereunder with respect to any one or more Projects to a qualified intermediary, as part of, and in furtherance of, such tax deferred exchange. Purchaser agrees to assist and cooperate in any such exchange for the benefit of 1986 Seller at no cost, expense or otherwiseliability TO Purchaser and without reduction or alteration of the rights of Purchaser under this Agreement and with respect to Seller; and Purchaser further agrees to execute any and all documents (subject to the reasonable approval of Purchaser's legal counsel) as are reasonably necessary in connection with any such exchange at Seller's sole expense provided that Purchaser shall not be required to undertake any material liability or obligation in so doing and provided that such exchange does not extend the Closing Date. As part of any such exchange, Seller shall convey the Property directly to Purchaser and Purchaser shall not be obligated to acquire or CONVEY any other property as part of such exchange. Seller shall indemnify, hold harmless and defend Purchaser from and against any and all claims, demands, causes of action, liabilities, losses, costs, damages and expenses (including reasonable attorneys' fees and expenses and court costs incurred in defending any such claim or in enforcing this indemnity) that may be incurred by Purchaser and arising out of Purchaser's participation in any such exchange for the benefit of Seller. Notwithstanding the foregoing, should SELLER fail to effect any tax deferred exchange as contemplated in this Section 4.8 for any reason, then the sale by Seller of the Property shall be consummated in accordance with terms and conditions of this Agreement just as though the provisions of this Section 4.8 had been omitted from this Agreement, except that Purchaser shall be reimbursed and indemnified from resulting costs and expenses as provided in this Section 4.8. Nothing contained in this Section 4.8 shall release Seller of any of its obligations or liabilities under this Agreement, whether arising before, at or after Closing, nor shall anything contained in this Section 4.8 impose any liability or obligation on Purchaser with respect to the tax consequences of this transaction to Seller.

Seller’s Tax Deferred Exchange. Notwithstanding any terms in this Contract to the contrary, Seller shall have the right to exchange the Property to qualify as a tax-deferred exchange under the provisions of Section 1031 of the Internal Revenue Code of 1986, as amended (the “Code”) and the Treasury Regulations thereunder. It is understood and agreed that Seller shall have the option, exercisable by giving notice to Buyer at any time prior to the Closing Date, of effecting a like-kind exchange of all or any portion of the Property by assigning (the “Assignment”) its rights in this Agreement to a qualified intermediary (the “Intermediary”) who shall contract with Seller to deliver to Seller in exchange therefor property or other consideration (“Exchange Property”), at such times as shall be designated in the contract between Seller and the Intermediary. Upon the Assignment, the Intermediary shall be substituted for Seller as the seller of the property. Buyer agrees to accept the Property and all other required performance from the Intermediary and to render its performance of all of its obligations to the Intermediary; provided, that Seller shall, at the Intermediary’s direction, nevertheless may convey the Property to Buyer in accordance with (and as limited by) the terms of this Agreement. Buyer agrees that performance by the Intermediary will be treated as performance by the seller under this Agreement, and Seller agrees that Buyer’s performance to the Intermediary will be treated as performance to the seller under this Agreement. Buyer shall reasonably cooperate with Seller and execute such documents as are reasonably necessary for Seller to effect such exchange; provided, that the contemplated exchange shall not delay any of the time periods or other obligations of Seller hereunder, including, without limitation, those related to the Closing and the scheduled date for the same. Seller shall unconditionally guarantee the full and timely performance by the Intermediary of each and every one of the representations, warranties, indemnities, obligations and undertakings (collectively, the “Undertakings”) of the Intermediary hereunder. As guarantor, Seller shall be treated as a primary obligor with respect to the Undertakings, and, in the event part of a breach of or claim with respect to an Undertaking, Buyer may proceed directly against Seller on this guarantee without the need to join the Intermediary as a party to any action against Seller. Seller unconditionally waives any defense that it might have as guarantor that it would not have if it had made or undertaken the Undertakings directly. In the event of the breach of any Undertaking by Seller or the Intermediary (whether such Undertaking is express or implied) or in the event of any claim upon any indemnity of Seller or the Intermediary, Buyer’s exclusive recourse shall be against Seller; Buyer shall have no recourse of any type against the Intermediary arising from this transaction. Seller hereby agrees to indemnify, defend and hold Buyer harmless of and from any and all liabilities, claims, demands and expenses of any kind or nature (including, without limitation, reasonable attorney’s fees) which it reasonably incurs or suffers as a result of or in connection with a like-kind exchange contemplated by this Section. Seller hereby acknowledges and agrees that Buyer neither warrants nor represents that an exchange of the Property for the Exchange Property will qualify for tax deferred exchange treatment for the benefit of Seller pursuant to Section 1031 of the Internal Revenue Code Code. With respect thereto, Seller may assign all of 1986 Seller's contract rights and obligations hereunder to an exchange accommodation titleholder or otherwisea qualified intermediary, as part of, and in furtherance of, such tax deferred exchange. Purchaser agrees to assist and cooperate in such exchange for the benefit of Seller at no cost, expense or liability to Purchaser and without reduction or alteration of the rights of Purchaser under this Agreement and with respect to Seller; and Purchaser further agrees to execute any and all documents (subject to the reasonable approval of Purchaser's legal counsel) as are reasonably necessary in connection with such exchange at Seller's sole expense provided that Purchaser shall not be required to undertake any material liability or obligation in so doing and provided that such exchange does not extend the Closing Date. As part of such exchange, Seller shall convey the Property directly to Purchaser and Purchaser shall not be obligated to acquire or convey any other property as part of such exchange. Seller shall indemnify, hold harmless and defend Purchaser from and against any and all claims, demands, causes of action, liabilities, losses, costs, damages and expenses (including reasonable attorneys' fees and expenses and court costs incurred in defending any such claim or in enforcing this indemnity) that may be incurred by Purchaser and arising out of Purchaser's participation in such exchange for the benefit of Seller, which obligation shall survive the Closing. Notwithstanding the foregoing, should Seller fail to effect a tax deferred exchange as contemplated in this Section 4.8 for any reason, then the sale by Seller of the Property shall be consummated in accordance with terms and conditions of this Agreement just as though the provisions of this Section 4.8 had been omitted from this Agreement, except that Purchaser shall be reimbursed and indemnified from resulting costs and expenses as provided in this Section 4.8. Nothing contained in this Section 4.8 shall release Seller of any of its obligations or liabilities under this Agreement, whether accruing before, at or after Closing, nor shall anything contained in this Section 4.8 impose any liability or obligation on Purchaser with respect to the tax consequences of this transaction to Seller.

Seller’s Tax Deferred Exchange. Notwithstanding any terms in this Contract Seller may desire to the contrary, Seller shall have the right to exchange the Property to qualify as effect a tax-deferred exchange under the provisions of Section 1031 of the Internal Revenue Code of 1986, as amended (the “Code”) and the Treasury Regulations thereunder. It is understood and agreed that Seller shall have the option, exercisable by giving notice with respect to Buyer at any time prior to the Closing Date, of effecting a like-kind exchange its disposition of all or any a portion of the Property by assigning (the “AssignmentSeller’s Exchange”) its rights in this Agreement to a qualified intermediary (the “Intermediary”) who shall contract with Seller to deliver to Seller in exchange therefor property or other consideration (“Exchange Property”), at such times as shall be designated in the contract between Seller and the Intermediary. Upon the Assignment, the Intermediary shall be substituted for Seller as the seller of the property. Buyer agrees to accept the Property and all other required performance from the Intermediary and to render its performance of all of its obligations to the Intermediary; provided, that Seller shall, at the Intermediary’s direction, nevertheless convey the Property to Buyer in accordance with (and as limited by) the terms of this Agreement. Buyer agrees that performance by the Intermediary will be treated as performance by the seller under this Agreement, and Seller agrees that Buyer’s performance to the Intermediary will be treated as performance to the seller under this Agreement. Buyer shall reasonably cooperate with Seller and execute such documents as are reasonably necessary for Seller to effect such exchange; provided, that the contemplated exchange shall not delay any of the time periods or other obligations of Seller hereunder, including, without limitation, those related to the Closing and the scheduled date for the same. Seller shall unconditionally guarantee the full and timely performance by the Intermediary of each and every one of the representations, warranties, indemnities, obligations and undertakings (collectively, the “Undertakings”) of the Intermediary hereunder. As guarantor, Seller shall be treated as a primary obligor with respect to the Undertakings, and, in the event of a breach of or claim with respect to an Undertaking, Buyer may proceed directly against Seller on this guarantee without the need to join the Intermediary as a party to any action against Seller. Seller unconditionally waives any defense that it might have as guarantor that it would not have if it had made or undertaken the Undertakings directly. In the event of the breach of any Undertaking by Seller or the Intermediary (whether such Undertaking is express or implied) or in the event of any claim upon any indemnity of Seller or the Intermediary, Buyer’s exclusive recourse shall be against Seller; Buyer shall have no recourse of any type against the Intermediary arising from this transaction. Seller hereby agrees to indemnify, defend and hold Buyer harmless of and from any and all liabilities, claims, demands and expenses of any kind or nature (including, without limitation, reasonable attorney’s fees) which it reasonably incurs or suffers as a result of or in connection with a like-kind exchange contemplated by this Section. Seller hereby acknowledges and agrees that Buyer neither warrants nor represents that an exchange of the Property for the Exchange Property will qualify for tax deferred exchange treatment pursuant to Section 1031 of the Internal Revenue Code Code. Seller’s Exchange will be structured by Seller at its sole cost and expense and Buyer will have no obligation to acquire or enter into the chain of 1986 title to any property other than the Property. Buyer’s sole obligation in connection with Seller’s Exchange shall be to review and execute certain documentation necessary in order to effectuate Seller’s Exchange in accordance with the foregoing and the applicable rules governing such exchanges. Buyer’s cooperation with Seller’s Exchange shall not affect or otherwise.diminish Buyer’s rights under this Agreement, delay the closing of this Agreement or be construed as Buyer’s warranty that Seller’s Exchange in fact complies with Section 1031 of the Internal Revenue Code. Buyer shall have the right to review and reasonably approve any documents to be executed by Buyer in connection with Seller’s Exchange. Acceptance of title to the Property from Seller’s designated intermediary shall not modify Seller’s representations, warranties and covenants to Buyer under this Agreement or the survival thereof pursuant to this Agreement. The Warranty Deed and all closing documents shall run directly between Seller and Buyer. Seller shall indemnify and hold Buyer harmless from and against any and all claims, liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees but excluding costs incurred to review the exchange documents) arising from Seller’s Exchange (other than what would have been applicable under this Agreement without Seller’s Exchange) which indemnification obligation shall survive the Close of Escrow. Seller is relying solely upon the advice and counsel of professionals of Seller’s choice in structuring, executing and consummating Seller’s Exchange. PURCHASE AND SALE AGREEMENT Gateway / Summit Healthcare REIT, Inc.