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(1) In the event Exchangor does not identify all
or any of the Like Kind Property within the forty-five
(45) day period referred to in (a) above, then Exchang-
or shall notify Buyer in writing at any time after the
expiration of such forty-five (45) day period and
Buyer, within three (3) business days of receipt of
said written notice, shall cause Escrow Agent to pay to
Exchangor an amount equal to the Agreed Amount.
It was only in the event that OIP did not identify all or any of
the replacement property within 45 days after July 26, 1990, that
OIP had the right under that paragraph to notify Interstate in
writing at any time after the expiration of that 45-day period,
in which event Mr. Hefferan as Interstate's trustee became
obligated to pay OIP the "Agreed Amount" as defined in paragraph
5(e)(1) of the escrow agreement within three business days after
receipt of such written notice. In this connection, it is
significant that the escrow agreement did not identify what
portion of the escrowed sales proceeds was to be used to purchase
replacement property and what portion was to remain as boot under
section 1031, and the record does not disclose the date after
July 26, 1990, on which the parties to the escrow agreement knew
what portion of those proceeds would remain as boot under section
1031.
It is also significant that if, as petitioners contend, OIP
complied with paragraph 5(a) of the escrow agreement and notified
Interstate in writing within 45 days after July 26, 1990, of the
identity of all four of the properties that it ultimately ac-
quired with a portion of the escrow fund, it would not have been
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