WHICH THE PROPERTY IS LOCATED AND OF THE AUTHORITY OF BUYER'S ASSIGNEE TO
EXECUTE AND DELIVER ANY AND ALL DOCUMENTS REQUIRED OF BUYER UNDER THE TERMS OF
THIS AGREEMENT; AND
(II)
BUYER SHALL PROVIDE SELLER ANY OTHER
INFORMATION THAT SELLER MAY REASONABLY REQUEST WITH RESPECT TO THE PROPOSED
ASSIGNEE; AND
(III)
BUYER AND THE PROPOSED ASSIGNEE SHALL EXECUTE AN
ASSIGNMENT AND ASSUMPTION OF THIS AGREEMENT PURSUANT TO WHICH BUYER'S
OBLIGATIONS HEREUNDER ARE EXPRESSLY ASSUMED BY SUCH ASSIGNEE.
(D)
NOTWITHSTANDING ANY PROVISION IN THIS
AGREEMENT TO THE CONTRARY:
(I)
ANY PERMITTED ASSIGNMENT BY BUYER SHALL NOT
RELIEVE BUYER OF ANY OF ITS OBLIGATIONS AND LIABILITIES HEREUNDER INCLUDING
OBLIGATIONS AND LIABILITIES WHICH SURVIVE THE CLOSING OR THE TERMINATION OF THIS
AGREEMENT, NOR SHALL ANY SUCH ASSIGNMENT ALTER, IMPAIR OR RELIEVE SUCH ASSIGNEE
FROM THE WAIVERS, ACKNOWLEDGEMENTS AND AGREEMENTS OF BUYER SET FORTH HEREIN,
INCLUDING, BUT NOT LIMITED TO, THOSE SET FORTH IN ARTICLE 5, ARTICLE 11 AND
ARTICLE 12 HEREOF, ALL OF WHICH WILL BE BINDING UPON ANY ASSIGNEE OF BUYER.
(II)
NO TRANSFER BY BUYER OF ANY INTEREST IN THIS
AGREEMENT AND NO TRANSFERS OF DIRECT OR INDIRECT INTERESTS IN BUYER SHALL BE
PERMITTED IF THE SAME WOULD CAUSE THE REPRESENTATIONS AND WARRANTIES MADE IN
SECTION 11.1 TO BE UNTRUE, INACCURATE OR INCOMPLETE (FOLLOWING ANY NECESSARY
RESTATEMENT OF THE REPRESENTATION AND WARRANTY SET FORTH IN SECTION 11.1(D) IN
ORDER TO BE ACCURATE WITH RESPECT TO SUCH ASSIGNEE) AND BUYER COVENANTS TO
COOPERATE WITH SELLER'S REQUESTS TO PROVIDE DOCUMENTATION REASONABLY NECESSARY
OR DESIRABLE FOR SELLER TO VERIFY THAT SUCH REPRESENTATIONS AND WARRANTIES ARE
TRUE, ACCURATE AND COMPLETE PRIOR TO CLOSING.
38
16.2
Designation Agreement.
Section 6045(e) of the
United States Internal Revenue Code and the regulations promulgated thereunder
(herein collectively called the "Reporting Requirements") require an information
return to be made to the United States Internal Revenue Service, and a statement
to be furnished to Seller, in connection with the Transaction.
Escrow Agent is
either (x) the person responsible for closing the Transaction (as described in
the Reporting Requirements) or (y) the disbursing title or escrow company that
is most significant in terms of gross proceeds disbursed in connection with the
Transaction (as described in the Reporting Requirements).
Accordingly:
(A)
ESCROW AGENT IS HEREBY DESIGNATED AS THE
"REPORTING PERSON" (AS DEFINED IN THE REPORTING REQUIREMENTS) FOR THE
TRANSACTION.
ESCROW AGENT SHALL PERFORM ALL DUTIES THAT ARE REQUIRED BY THE
REPORTING REQUIREMENTS TO BE PERFORMED BY THE REPORTING PERSON FOR THE
TRANSACTION.
(B)
SELLER AND BUYER SHALL FURNISH TO ESCROW
AGENT, IN A TIMELY MANNER, ANY INFORMATION REQUESTED BY ESCROW AGENT AND
NECESSARY FOR ESCROW AGENT TO PERFORM ITS DUTIES AS REPORTING PERSON FOR THE
TRANSACTION.
(C)
SELLER ACKNOWLEDGES THAT ANY FAILURE BY
SELLER TO PROVIDE ESCROW AGENT WITH SELLER'S CORRECT TAXPAYER IDENTIFICATION
NUMBERS MAY SUBJECT SELLER TO CIVIL OR CRIMINAL PENALTIES IMPOSED BY LAW.
(D)
EACH OF THE PARTIES HERETO SHALL RETAIN THIS
AGREEMENT FOR A PERIOD OF FOUR (4) YEARS FOLLOWING THE CALENDAR YEAR DURING
WHICH CLOSING OCCURS.
16.3
Survival/Merger.