RELATING TO U.S. CMBS LEGAL AND STRUCTURED FINANCE CRITERIA, SELLER
SHALL COOPERATE IN GOOD FAITH TO SUBMIT A CERTIFICATION TO PURCHASER OF SUCH
FACTS, TO THE EXTENT THE SAME ARE TRUE OR INDICATE WHICH FACTS OR REQUIREMENTS
ARE NOT TRUE OR ARE QUALIFIED.
5.6.12
PURCHASER'S FINANCING. SELLER AGREES THAT TO THE EXTENT REASONABLY
REQUESTED BY PURCHASER, SELLER WILL CONSIDER AND REASONABLY COOPERATE WITH IN
GOOD FAITH ANY MODIFICATIONS TO THE EXISTING STRUCTURE OF THE TRUSTS AND THE
PROPERTY LLCS THAT DO NOT HAVE ANY ADVERSE TAX, ECONOMIC OR OTHER CONSEQUENCES
TO SELLER, SO THAT PURCHASER MEETS LENDER REQUIREMENTS FOR FINANCING THE
PROPERTY.
5.6.13
KIMCO OFP PURCHASE TRANSACTION NOT A BREACH OR DEFAULT.
5.6.14
NOTWITHSTANDING THE REPRESENTATIONS AND COVENANTS OF SELLER
IN THIS SECTION 5 OR ELSEWHERE IN THIS AGREEMENT, THE CREATION OR EXISTENCE OF
THE OFP TRUST LOAN AND THE DEBT OBLIGATION THEREUNDER, AS INCURRED TO ACQUIRE
THE KIMCO OFP INTEREST, SHALL NOT CONSTITUTE A BREACH OR DEFAULT UNDER THIS
AGREEMENT PROVIDED THAT SELLER APPLIES A PORTION OF THE PURCHASE PRICE ALLOCATED
TO ONE FINANCIAL PLACE IN FULL SATISFACTION OF THE OFP TRUST LOAN AT CLOSING.
5.7
Tax Matters.
5.7.1
SELLER SHALL INDEMNIFY AND HOLD HARMLESS EACH PURCHASER INDEMNIFIED
PARTY FROM AND AGAINST ANY DAMAGES AS INCURRED, TO THE EXTENT THEY ARISE OUT OF
OR ARE A RESULT OF ANY TAXES, INCLUDING, WITHOUT LIMITATION, INTEREST, PENALTIES
AND ADDITIONS THERETO (OTHER THAN (X) TRANSFER TAXES, STAMP TAXES OR OTHER TAXES
ASSESSED IN CONNECTION WITH THE SALE OR TRANSFER OF STOCK, A PROPERTY OR ANY
INTEREST THEREIN, OR ANY OTHER TAX, FOR WHICH RESPONSIBILITY IS ALLOCATED TO
PURCHASER IN ACCORDANCE WITH SECTION 4.5 OF THIS AGREEMENT OR (Y) ANY REAL
PROPERTY TAXES OR ASSESSMENTS FOR WHICH RESPONSIBILITY IS ALLOCATED TO PURCHASER
IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT) IMPOSED ON THE TRANSFERRED
COMPANIES, THE PROPERTY MANAGERS OR ILLINOIS MANAGER RELATING TO TAXABLE PERIODS
OR PORTIONS THEREOF ENDING ON OR BEFORE THE DATE OF THE CLOSING OR ALLOCABLE TO
THE PORTION THEREOF THROUGH THE DATE OF THE CLOSING PURSUANT TO THIS PARAGRAPH,
OTHER THAN ARISING FROM (I) A BREACH OF PURCHASER'S OBLIGATIONS UNDER THIS
AGREEMENT, (II) CHANGE IN LAW FOLLOWING THE CLOSING THAT INCREASES THE TAXES ON
ANY OF THE TRANSFERRED COMPANIES, THE PROPERTY MANAGERS OR ILLINOIS MANAGER,
(III) A FAILURE BY PURCHASER TO CAUSE EACH TRUST TO MAKE SUFFICIENT
DISTRIBUTIONS FOLLOWING THE CLOSING, ELIGIBLE FOR DIVIDENDS PAID DEDUCTIONS, TO
ELIMINATE ANY INCOME TAX LIABILITY OF EACH TRUST FOR SUCH TRUST'S TAXABLE YEAR
THAT INCLUDES THE CLOSING, OR (IV) ANY OTHER ACTION OR
39
ACTIVITY OF THE TRANSFERRED COMPANIES, THE PROPERTY MANAGERS OR ILLINOIS MANAGER
AFTER THE CLOSING THAT INCREASES THEIR TAXES FOR PERIODS ENDING ON OR PRIOR TO
THE CLOSING DATE. IF THE CLOSING DATE IS OTHER THAN THE LAST DAY OF A TAXABLE
PERIOD OF THE TRUSTS, THE TAX ATTRIBUTABLE TO THE OPERATIONS OF THE TRANSFERRED
COMPANIES OR THE PROPERTY MANAGERS FOR THE PORTION OF THE PERIOD UP TO AND
INCLUDING THE DATE OF THE CLOSING SHALL BE (I)