Common use of Tax Deferred Exchanges Clause in Contracts

Tax Deferred Exchanges. From time to time, the Owner Participant may propose to enter into an Exchange Transaction. Each of the parties hereto, agrees to cooperate with the Owner Participant and take such action and deliver such documents as the Owner Participant may from time to time reasonably require in connection with the consummation of such Exchange Transaction; provided, that, in the case of the Loan Participants, they are not, in the reasonable judgment of the Majority in Interest of Holders of Notes, adversely affected thereby and will not bear any expense or incur any liability in connection therewith or as a result thereof, and that, in the case of all parties, no such party will provide any assurance that any such Exchange Transaction proposed, and documented as requested, by the Owner Participant will satisfy the requirements for a tax-deferred exchange, the determination that the Owner Participant’s proposed Exchanged Transaction will satisfy such requirements being solely the responsibility of the Owner Participant. All reasonable costs and expenses incurred by the parties hereto in connection with any proposed Exchange Transaction shall be payable by the Owner Participant. If the parties hereto consent to any action requested by the Owner Participant to be taken in connection with any Exchange Transaction, the Lessor shall take such action. As used herein, an “Exchange Transaction” shall mean the transfer by the Owner Participant of the Undivided Interest (or any portion thereof) pursuant to Section 13 of the Participation Agreement, and the acquisition of a replacement property (or properties) by the Owner Participant, in a manner which the Owner Participant believes will satisfy the requirements for tax-deferred exchanges of property under Section 1031 or 1033 of the Code (including, without limitation, through the transfer of properties, or contract rights thereto, to and from certain intermediaries). The Lessor or the Owner Participant shall reimburse the Lessee for all amounts paid to the Loan Participants or the Indenture Trustee in respect of Claims in connection with any Exchange Transaction to which the Lessee is required to indemnify any such Person in accordance with Section 12 (unless any such Claim is caused by the gross negligence or willful misconduct of the Lessee).

Tax Deferred Exchanges. From time Purchaser or any entity encompassing Purchaser may desire to timeacquire the Property through a reverse tax deferred exchange which qualifies for non-recognition of gain under Section 1031 of the Code. Seller shall cooperate with Purchaser in attempting to effectuate such exchange, including, but not limited to, the Owner Participant execution of such documentation as may propose be reasonably necessary to enter into an Exchange Transaction. Each of the parties heretoeffect such exchange, agrees to cooperate with the Owner Participant and take such action and deliver such documents as the Owner Participant may from time to time reasonably require provided that (i) Seller shall not incur any additional liability in connection with an exchange for the consummation benefit of such Purchaser, (ii) the date of Closing shall not be extended as a result of the exchange, without Seller’s prior written consent, which consent Seller may withhold in its sole and absolute discretion, (iii) any additional costs and charges attributable to the exchange, including, but not limited to, attorneys’ fees, brokers’ commissions and other transaction related expenses shall be paid for by Purchaser, and (iv) Purchaser acknowledges and agrees that Seller and/or its attorneys are not giving Purchaser any advice (including tax advice) in connection therewith. Purchaser and Seller further agree that Purchaser may substitute an Exchange Transaction; providedAccommodator Titleholder (“EAT”) (as defined in Rev. Proc. 2000-37) to act in place of Purchaser as the purchaser of the Property. Seller agrees to accept all required performance from EAT and to render its performance of all of its obligations to EAT. Seller agrees that performance by EAT will be treated as performance by Purchaser. Purchaser shall unconditionally guarantee the full and timely performance by EAT of each and every one of the representations, thatwarranties, covenants, indemnities, obligations and undertakings of EAT. As guarantor, Purchaser shall be treated as a primary obligor with respect to these representations, warranties, covenants, indemnities, obligations and undertakings, and, in the case event of breach, Seller may proceed directly against Purchaser, subject to the Loan Participantsterms and conditions of this Agreement, they are not, in on this guarantee without the reasonable judgment of the Majority in Interest of Holders of Notes, adversely affected thereby and will not bear any expense or incur any liability in connection therewith or need to join EAT as a result thereof, and that, in the case of all parties, no such party will provide any assurance that any such Exchange Transaction proposed, and documented as requested, by the Owner Participant will satisfy the requirements for a tax-deferred exchange, the determination that the Owner Participant’s proposed Exchanged Transaction will satisfy such requirements being solely the responsibility of the Owner Participant. All reasonable costs and expenses incurred by the parties hereto in connection with any proposed Exchange Transaction shall be payable by the Owner Participant. If the parties hereto consent to any action requested by against Purchaser. Purchaser unconditionally waives any defense that it might have as guarantor that it would not have if it had made or undertaken these representations, warranties, covenants, indemnities, obligations and undertakings directly. In the Owner Participant to be taken in connection with any Exchange Transaction, the Lessor shall take such action. As used herein, an “Exchange Transaction” shall mean the transfer by the Owner Participant event of the Undivided Interest breach of any representations, warranties, covenants, obligations and undertakings by Purchaser or EAT or in the event of any claim upon any indemnity of Purchaser or EAT (whether the representation, warranty, covenant, indemnity, obligation or any portion thereof) pursuant to Section 13 of undertaking is express or implied), Seller’s exclusive recourse shall be against the Participation Agreement, and the acquisition of a replacement property (or properties) by the Owner Participant, in a manner which the Owner Participant believes will satisfy the requirements for tax-deferred exchanges of property under Section 1031 or 1033 of the Code (including, without limitation, through the transfer of properties, or contract rights thereto, to and from certain intermediaries). The Lessor or the Owner Participant shall reimburse the Lessee for all amounts paid to the Loan Participants or the Indenture Trustee in respect of Claims in connection with any Exchange Transaction to which the Lessee is required to indemnify any such Person Purchaser in accordance with Section 12 (unless the terms of this Agreement and Seller shall have no recourse of any such Claim is caused by type against the gross negligence or willful misconduct of the Lessee)EAT arising from this transaction.