Closing; Condition to Obligations. In connection with its acquisition --------------------------------- of the Contributors' Interests, the Operating Partnership will notify the Contributors of a closing date, which date will be no earlier than five (5) business days after such notification and no later than December 15, 1998 (fifteen (15) business days prior to the Termination Date), for the initial closing (the "Initial Closing") of the acquisition contemplated by this --------------- Contribution Agreement. At or before such Initial Closing, which shall be held at the offices of Xxxxx & Wood llp, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other place as is determined by the Operating Partnership in its sole discretion at a time specified by the Operating Partnership in its sole discretion, the Operating Partnership and the Contributors will execute all closing documents (the "Closing Documents") required by the Operating ----------------- Partnership in accordance with Section 1.5 hereof and deposit the same in escrow with Xxxxx & Xxxx llp, New York, New York, pursuant to an escrow agreement in substantially the form of Exhibit F hereto, as escrow agent of the Operating Partnership (the "Closing Agent"). ------------- The transactions contemplated by this Contribution Agreement and by the Closing Documents executed and deposited in connection with such exercise will be consummated at the Final Closing (as hereinafter defined) only if (i) the closing of the IPO (the "IPO Closing") is consummated by the earlier of (a) ----------- fifteen (15) business days after the date of the Initial Closing and (b) the Termination Date and (ii) the Total Company Enterprise Value (as defined in Exhibit A) is equal to or greater than $405,000,000. If the IPO Closing occurs by such date: (a) The Operating Partnership shall, contemporaneously with the IPO Closing, cause to be delivered to the Closing Agent with respect to each Contributor (i) the cash portion of such Contributor's Consideration, if any (such cash portion, the "Cash Portion"), and (ii) if applicable, a certificate of ------------ the General Partner of the Operating Partnership certifying that such Contributor has been or will be, effective upon the Final Closing (as hereinafter defined), admitted as a limited partner of the Operating Partnership and that the Operating Partnership's books and records indicate or will indicate that such Contributor is the holder of the number of Units which are called for pursuant to the Consideration as adjusted pursuant to Article IV hereof; (b) upon receipt of the Consideration set forth in clause (a) above, the Closing Agent will release the Closing Documents to the Operating Partnership and deliver to the Contributor the Cash Portion, if any, and, if requested by the Contributor, a copy of such General Partner's certificate; and (c) the transactions described or otherwise contemplated herein or in the Closing Documents will thereupon be deemed to have been consummated simultaneously with the IPO Closing (such consummation, the "Final Closing"). ------------- Notwithstanding the above, the Operating Partnership may, in its sole discretion, elect not to complete the acquisition of all or any portion of the Interests of any Contributor only in the event that such Contributor specifies, in its Assignment delivered pursuant to Section 1.5, a breach of or other exception with respect to Article 2 hereof or has otherwise materially breached this Contribution Agreement (any such Contributor, a "Non-Complying ------------- Contributor"), in which case the Operating Partnership shall, in lieu of the delivery with respect to such Contributor pursuant to clause (a) above, notify the Closing Agent of such election and direct the Closing Agent to return such Contributor's Closing Documents and Ancillary Agreements (as defined below) to such Contributor. The election of the Operating Partnership to not acquire all or any portion of the Interests of a particular Non-Complying Contributor shall not affect the obligations of any other Contributor hereunder, including any other Non-Complying Contributor. The risk of loss to an Asset Entity's Assets prior to Closing shall be borne by such Asset Entity. If, prior to the Final Closing, any of an Asset Entity's Assets shall be destroyed or damaged by fire or other casualty, then this Contribution Agreement may, at the option of the Operating Partnership, be terminated with respect to the Asset Entity, the Assets of which have been destroyed or damaged. If, after the occurrence of any such casualty affecting an Asset Entity's Assets, this Contribution Agreement is not so terminated relative to such Asset Entity, the Operating Partnership may elect to (i) purchase the given Contributors' Interests in such Asset Entity or Assets, as the case may be, and (ii) direct such Contributors to pay or cause to be paid to the Operating Partnership any sums collected under any policies of insurance because of damage due to such casualty and otherwise assign to the Operating Partnership all rights to collect such sums as may then be uncollected; provided, however, that the Contributors shall not adjust or settle any insurance claim without the Operating Partnership's prior written consent, not to be unreasonably withheld or delayed. Under such circumstances, the Consideration payable upon such purchase shall be reduced by the amount of any deductibles under the applicable insurance policies. If the IPO Closing does not occur by the earlier of (a) fifteen (15) business days after the date of the Initial Closing and (b) the Termination Date, then, except as set forth in Section 1.8, neither party shall have any obligations under the Closing Documents or under any agreements or instruments executed in connection with the transactions contemplated hereunder or thereunder (such other agreements or instruments, collectively, "Ancillary --------- Agreements"), this Contribution Agreement, the Closing Documents and the ---------- Ancillary Agreements shall be deemed null and void ab initio and the Closing --------- Agent will be, and is hereby, directed to destroy the Closing Documents and any Ancillary Agreement it holds and return to the Operating Partnership the Consideration, if any, delivered by the Operating Partnership to the Closing Agent in accordance with the previous paragraph.
Appears in 2 contracts
Samples: Contribution Agreement (Lasalle Hotel Properties), Contribution Agreement (Lasalle Hotel Properties)
Closing; Condition to Obligations. In connection with its acquisition --------------------------------- of Subject to the Contributors' Interestsforegoing, Xxxxxx-Xxxxx and the Operating Partnership Owners (by a majority vote thereof) will notify the Contributors of specify a closing date, which date will shall be no earlier than five (5) business days after such notification and no later than December 1531, 1998 1997 (fifteen (15) business days prior to or, if applicable, the Termination Closing Extension Date, as defined in the Master Agreement), for the initial closing (the "Initial Closing") of the acquisition exchange contemplated by this --------------- Contribution Agreementhereby which Initial Closing shall take place at the offices of Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P., Raleigh, North Carolina. At or before such Initial Closing, which shall be held at the offices of Xxxxx & Wood llp, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other a place as is and time determined by the Operating Partnership in its sole discretion at a time specified by the Operating Partnership in its sole discretion, the Operating Partnership Xxxxxx-Xxxxx and the Contributors Owners (by a majority vote thereof), Xxxxxx-Xxxxx and Owner will execute all closing documents (the "Closing Documents") required by the Operating ----------------- Partnership Xxxxxx-Xxxxx in accordance with Section 1.5 hereof Paragraph 3.D. and deposit the same in escrow with Xxxxx & Xxxx llp, New York, New York, pursuant to an escrow agreement in substantially the form of Exhibit F hereto, as escrow agent of the Operating Partnership to be agreed upon by Xxxxxx-Xxxxx and Owner (the "Closing Agent"). ------------- The transactions contemplated by this Contribution Agreement and by If the Closing Documents executed and deposited in connection with such exercise will be consummated at the Final Closing (as hereinafter defined) only if occurs:
(i) the closing of the IPO With respect to each Partnership or Property (the "IPO Closing"or portion thereof) is consummated by the earlier of (a) ----------- fifteen (15) business days after the date of the Initial Closing and (b) the Termination Date and (ii) the Total Company Enterprise Value (as defined in Exhibit A) is equal to or greater than $405,000,000. If the IPO Closing occurs by such date:
(a) The Operating Partnership shallacquired, contemporaneously with the IPO Closing, Xxxxxx-Xxxxx shall cause to be delivered to the Closing Agent with respect to for the benefit of each Contributor (i) the cash portion of such Contributor's Consideration, if any (such cash portion, the "Cash Portion"), and (ii) if applicable, a certificate of ------------ the General Partner of the Operating Partnership certifying that such Contributor has been or will be, effective upon the Final Closing (as hereinafter defined), admitted as a limited partner of the Operating Partnership and that the Operating Partnership's books and records indicate or will indicate that such Contributor is the holder of Owner the number of Units which are called (each Unit having a value of $13.00 for pursuant purposes of determining the number of Units to be delivered in exchange for the Consideration Interests) set forth on each Owner's Supplemental Acquisition Schedule, as adjusted pursuant to Article IV hereofadjusted;
(bii) upon Upon receipt of the Consideration consideration set forth in clause (ai) above, the Closing Agent will release the Closing Documents to the Operating Partnership and deliver to the Contributor the Cash Portion, if any, and, if requested by the Contributor, a copy of such General Partner's certificateXxxxxx-Xxxxx; and
(ciii) the The transactions described or otherwise contemplated herein or in the Closing Documents will thereupon be deemed to have been consummated simultaneously with the IPO Closing (such consummation, consummation being hereafter referred to as the "Final Closing"). ------------- Notwithstanding the above, the Operating Partnership Xxxxxx-Xxxxx may, in its sole discretion, elect not to complete the acquisition of all or any portion of the Interests of any Contributor only in the event that such Contributor specifies, in its Assignment delivered pursuant to Section 1.5, a Owner with an identified breach of (and failure to cure within any relevant grace or cure period) or other exception with respect to Article 2 Paragraph 5 hereof or that has otherwise materially breached (and failed to cure) this Contribution Agreement (any such Contributor, Owner being hereafter referred to as a "Non-Complying ------------- ContributorOwner"), in which case the Operating Partnership Xxxxxx-Xxxxx shall, in lieu of the delivery with respect to such Contributor Owner pursuant to clause (ai) above, notify the Closing Agent of such election and direct the Closing Agent to return such ContributorOwner's Closing Documents and Ancillary Agreements (as defined below) to such Contributor. The election of the Operating Partnership to not acquire all or any portion of the Interests of a particular Non-Complying Contributor shall not affect the obligations of any other Contributor hereunder, including any other Non-Complying Contributor. The risk of loss to an Asset Entity's Assets prior to Closing shall be borne by such Asset Entity. If, prior to the Final Closing, any of an Asset Entity's Assets shall be destroyed or damaged by fire or other casualty, then this Contribution Agreement may, at the option of the Operating Partnership, be terminated with respect to the Asset Entity, the Assets of which have been destroyed or damaged. If, after the occurrence of any such casualty affecting an Asset Entity's Assets, this Contribution Agreement is not so terminated relative to such Asset Entity, the Operating Partnership may elect to (i) purchase the given Contributors' Interests in such Asset Entity or Assets, as the case may be, and (ii) direct such Contributors to pay or cause to be paid to the Operating Partnership any sums collected under any policies of insurance because of damage due to such casualty and otherwise assign to the Operating Partnership all rights to collect such sums as may then be uncollected; provided, however, that the Contributors shall not adjust or settle any insurance claim without the Operating Partnership's prior written consent, not to be unreasonably withheld or delayed. Under such circumstances, the Consideration payable upon such purchase shall be reduced by the amount of any deductibles under the applicable insurance policies. If the IPO Closing does not occur by the earlier of (a) fifteen (15) business days after the date of the Initial Closing and (b) the Termination Date, then, except as set forth in Section 1.8, neither party shall have any obligations under the Closing Documents or under any agreements or instruments executed in connection with the transactions contemplated hereunder or thereunder thereby (such other agreements or instruments, collectively, the "Ancillary --------- Agreements")) to such Owner. The election of Xxxxxx-Xxxxx not to acquire the Interests of a particular Non-Complying Owner shall not affect the obligations of any other Owner hereunder, this Contribution Agreementincluding any other NonComplying Owner. If because of such an election, Xxxxxx-Xxxxx would not acquire all of the Interests in any one Partnership or Property, then Xxxxxx-Xxxxx may elect not to purchase any of the Interests in such Partnership or Property and none of the Owners in such Partnership or Property shall contribute its respective Interest in such Partnership or Property to Xxxxxx- Xxxxx. If the Closing of a Partnership or Property does not occur as a result of a Non-Complying Owner within the time provided by Paragraph 3.B., then no Owner of such Partnership or Property, except as to the Surviving Indemnities (as defined below) and the remedies for default provided below as to the Non-Complying Owner, shall have any obligations under the Closing Documents or any Ancillary Agreements with respect to such Partnership or Property. Such Closing Documents and the ---------- Ancillary Agreements shall be deemed deemed, except as to the Surviving Indemnities, null and void ab initio AB INITIO and the Closing --------- Agent will be, and is hereby, be directed to destroy the such Closing Documents and any Ancillary Agreement Agreements it holds and return to Xxxxxx- Xxxxx the Operating Partnership the Consideration, if any, consideration delivered by the Operating Partnership Xxxxxx-Xxxxx to the Closing Agent with respect to such Partnership or Property in accordance with the previous paragraph.
Appears in 1 contract
Samples: Exchange Option Agreement (Boddie Noell Properties Inc)
Closing; Condition to Obligations. In connection with its the acquisition --------------------------------- of the Contributors' Interests, the Operating Partnership will notify the Contributors of a closing date, which date will be no earlier than five (5) business days after such notification and no later than December 15, 1998 (fifteen (15) business days prior to the Termination Date), for the initial closing (the "Initial Closing") of the acquisition contemplated by this --------------- Omnibus Contribution Agreement. At or before such Initial Closing, which shall be held at the offices of Xxxxxx & Xxxxx & Wood llpLLP, Xxx Xxxxx Xxxxx 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other place as is determined by the Operating Partnership in its sole discretion discretion, at a time specified by the Operating Partnership in its sole discretion, the Operating Partnership and the Contributors will execute all closing documents (the "Closing Documents") required by the Operating ----------------- Partnership in accordance with Section 1.5 hereof and deposit the same in escrow with Xxxxxx & Xxxxx & Xxxx llp, New York, New York, pursuant to an escrow agreement in substantially the form of Exhibit F heretoLLP, as escrow agent of the Operating Partnership (the "Closing Agent"). ------------- The transactions contemplated by this Omnibus Contribution Agreement and by the Closing Documents executed and deposited in connection with such exercise will be consummated at the Final Closing (as hereinafter defineddefined below) only if (i) the closing of the IPO (the "IPO Closing") is consummated by the earlier of (a) ----------- fifteen (15) business days after the date of the Initial Closing and (b) the Termination Date and (ii) the Total Company Enterprise Value (as defined in Exhibit A) is equal to or greater than $405,000,000Date. If the IPO Closing occurs by such date:
(a) The the Operating Partnership shall, contemporaneously with the IPO Closing, shall cause to be delivered to the Closing Agent with respect to each Contributor (i) the cash portion of such Contributor's Consideration, if any (such cash portion, the "Cash Portion"), as adjusted pursuant to Article IV hereof and (ii) if applicable, a certificate of ------------ the General Partner of the Operating Partnership certifying each Contributor that such Contributor has been or receives Units will be, effective upon the Final Closing (as hereinafter defined), be admitted as a limited partner of the Operating Partnership and that the Operating Partnership's books and records indicate or will indicate that such Contributor is the holder of the number of Units which are called for pursuant to the Consideration as adjusted pursuant to Article IV hereof;
(b) upon receipt of the Consideration set forth in clause (a) above, the Closing Agent will release the Closing Documents to the Operating Partnership and deliver to the Contributor the Cash Portion, if any, and, if requested by the Contributor, a copy of such General Partner's certificateConsideration; and
(c) the transactions described or otherwise contemplated herein or in the Closing Documents will thereupon be deemed to have been consummated simultaneously with the IPO Closing (such consummation, the "Final Closing"). ------------- Notwithstanding the above, the Operating Partnership may, in its sole discretion, elect not to complete the acquisition of all or any portion of the Interests of any Contributor only in the event that such Contributor specifies, in its Assignment delivered pursuant to Section 1.5, a breach of or other exception with respect to Article 2 hereof or has otherwise materially breached this Contribution Agreement (any such Contributor, a "Non-Complying ------------- Contributor"), in which case the Operating Partnership shall, in lieu of the delivery with respect to such Contributor pursuant to clause (a) above, notify the Closing Agent of such election and direct the Closing Agent to return such Contributor's Closing Documents and Ancillary Agreements (as defined below) to such Contributor. The election of the Operating Partnership to not acquire all or any portion of the Interests of a particular Non-Complying Contributor shall not affect the obligations of any other Contributor hereunder, including any other Non-Complying Contributor. Insurance on the transferred assets shall be assigned to the Operating Partnership at the Final Closing. The risk of loss to an Asset Entity's Assets prior to the Final Closing shall be borne by such Asset Entity. If, prior to the Final Closing, any of an Asset Entity's Assets shall be destroyed or damaged by fire or other casualty, then this Omnibus Contribution Agreement may, at the option of the Operating Partnership, be terminated with respect to the Asset Entity, the Assets of which have been destroyed or damaged. If, after the occurrence of any such casualty affecting an Asset Entity's Assets, this Omnibus Contribution Agreement is not so terminated relative to such Asset Entity, the Operating Partnership may elect to (ia) purchase the given Contributors' Interests interests in such Asset Entity or Assets, as the case may be, and (iib) direct such Contributors to pay or cause to be paid to the Operating Partnership any sums collected under any policies of insurance because of damage due to such casualty and otherwise assign to the Operating Partnership all rights to collect such sums as may then be uncollected; providedPROVIDED, howeverHOWEVER, that the Contributors Contributor shall not adjust or settle any insurance claim without the Operating Partnership's prior written consent, not to be unreasonably withheld or delayed. Under such circumstances, the Consideration payable upon such purchase shall be reduced by the amount of any deductibles under the applicable insurance policies. If the IPO Closing does not occur by the earlier of (a) fifteen (15) business days after the date of the Initial Closing and (b) the Termination Date, then, except as set forth in Section 1.81.8 hereof, neither party shall have any obligations under the Closing Documents or under any agreements or instruments executed in connection with the transactions contemplated hereunder or thereunder (such other agreements or instruments, collectively, "Ancillary --------- Agreements"), and this Omnibus Contribution Agreement, the Closing Documents and the ---------- Ancillary Agreements shall be deemed null and void ab initio AB INITIO and the Closing --------- Agent will be, and is hereby, directed to destroy the Closing Documents and any Ancillary Agreement it holds and return to the Operating Partnership the Consideration, if any, delivered by the Operating Partnership to the Closing Agent in accordance with the previous paragraphAgent.
Appears in 1 contract
Samples: Omnibus Contribution Agreement (Macklowe Properties Inc)
Closing; Condition to Obligations. In connection with its the acquisition --------------------------------- of the Contributors' Interests, the Operating Partnership will notify the Contributors of a closing date, which date will be no earlier than five (5) business days after such notification and no later than December 15March 10, 1998 (fifteen (15) business days prior to the Termination Date), for the initial closing (the "Initial ClosingINITIAL CLOSING") of the acquisition contemplated by this --------------- Contribution Agreement. At or before such Initial Closing, which shall be held at the offices of Xxxxx & Wood llpXxxx LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other place as is determined by the Operating Partnership in its sole discretion at a time specified by the Operating Partnership in its sole discretion, the Operating Partnership and the Contributors will execute all closing documents (the "Closing DocumentsCLOSING DOCUMENTS") required by the Operating ----------------- Partnership in accordance with Section 1.5 hereof and deposit the same in escrow with Xxxxx & Xxxx llpWood LLP, New York, New York, pursuant to an escrow agreement in substantially the form of Exhibit F hereto, as escrow agent of the Operating Partnership (the "Closing AgentCLOSING AGENT"). ------------- The transactions contemplated by this Contribution Agreement and by the Closing Documents executed and deposited in connection with such exercise will be consummated at the Final Closing (as hereinafter defineddefined below) only if (i) the closing of the IPO (the "IPO ClosingCLOSING") is consummated by the earlier of (a) ----------- fifteen (15) business days after the date of the Initial Closing and (b) the Termination Date and (ii) the Total Company Enterprise Value (as defined in Exhibit A) is equal to or greater than $405,000,000Date. If the IPO Closing occurs by such date:
(a) The Operating Partnership shall, contemporaneously with the IPO Closing, cause to be delivered to the Closing Agent with respect to each Contributor (i) the cash portion of such Contributor's Consideration, if any (such cash portion, the "Cash PortionCASH PORTION"), and (ii) if applicable, a certificate of ------------ the General Partner of the Operating Partnership certifying that such Contributor has been or will be, effective upon the Final Closing (as hereinafter defined), admitted as a limited partner of the Operating Partnership and that the Operating Partnership's books and records indicate or will indicate that such Contributor is the holder of the number of Units which are called for pursuant to the Consideration as adjusted pursuant to Article IV V hereof;
(b) upon receipt of the Consideration set forth in clause (a) above, the Closing Agent will release the Closing Documents to the Operating Partnership and deliver to the Contributor the Cash Portion, if any, and, if requested by the Contributor, a copy of such General Partner's certificate; and
(c) the transactions described or otherwise contemplated herein or in the Closing Documents will thereupon be deemed to have been consummated simultaneously with the IPO Closing (such consummation, the "Final ClosingFINAL CLOSING"). ------------- Notwithstanding the above, the Operating Partnership may, in its sole discretion, elect not to complete the acquisition of all or any portion of the Interests of any Contributor only in the event that such Contributor specifies, in its Assignment delivered pursuant to Section 1.5, a breach of or other exception with respect to Article 2 hereof or has otherwise materially breached this Contribution Agreement (any such Contributor, a "NonNON-Complying ------------- ContributorCOMPLYING CONTRIBUTOR"), in which case the Operating Partnership shall, in lieu of the delivery with respect to such Contributor pursuant to clause (a) above, notify the Closing Agent of such election and direct the Closing Agent to return such Contributor's Closing Documents and Ancillary Agreements (as defined below) to such Contributor. The election of the Operating Partnership to not acquire all or any portion of the Interests of a particular Non-Complying Contributor shall not affect the obligations of any other Contributor hereunder, including any other Non-Complying Contributor. The risk of loss to an Asset Entity's Assets prior to Closing shall be borne by such Asset Entity. If, prior to the Final Closing, any of an Asset Entity's Assets shall be destroyed or damaged by fire or other casualty, then this Contribution Agreement may, at the option of the Operating Partnership, be terminated with respect to the Asset Entity, the Assets of which have been destroyed or damaged. If, after the occurrence of any such casualty affecting an Asset Entity's Assets, this Contribution Agreement is not so terminated relative to such Asset Entity, the Operating Partnership may elect to (ia) purchase the given Contributors' Interests in such Asset Entity or Assets, as the case may be, and (iib) direct such Contributors to pay or cause to be paid to the Operating Partnership any sums collected under any policies of insurance because of damage due to such casualty and otherwise assign to the Operating Partnership all rights to collect such sums as may then be uncollected; provided, however, that the Contributors Contributor shall not adjust or settle any insurance claim without the Operating Partnership's prior written consent, not to be unreasonably withheld or delayed. Under such circumstances, the Consideration payable upon such purchase shall be reduced by the amount of any deductibles under the applicable insurance policies. If the IPO Closing does not occur by the earlier of (a) fifteen (15) business days after the date of the Initial Closing and (b) the Termination Date, then, except as set forth in Section 1.81.8 hereof, neither party shall have any obligations under the Closing Documents or under any agreements or instruments executed in connection with the transactions contemplated hereunder or thereunder (such other agreements or instruments, collectively, "Ancillary --------- AgreementsANCILLARY AGREEMENTS"), this Contribution Agreement, the Closing Documents and the ---------- Ancillary Agreements shall be deemed null and void ab initio AB INITIO and the Closing --------- Agent will be, and is hereby, directed to destroy the Closing Documents and any Ancillary Agreement it holds and return to the Operating Partnership the Consideration, if any, delivered by the Operating Partnership to the Closing Agent in accordance with the previous paragraphAgent.
Appears in 1 contract
Samples: Omnibus Contribution Agreement (Sl Green Realty Corp)
Closing; Condition to Obligations. In connection with its acquisition --------------------------------- of the Contributors' InterestsPremises, the Operating Partnership will notify the Contributors Seller of a closing date, which date will be no earlier than five (5) business days after such notification and no later than December 15March 10, 1998 (fifteen (15) business days prior to the Termination Date), for the initial closing (the "Initial ClosingINITIAL CLOSING") of the acquisition contemplated by this --------------- Contribution AgreementContract. At or before such the Initial Closing, which shall be held at the offices of Xxxxx & Wood llpXxxx LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other place located in New York City as is determined by the Operating Partnership in its sole discretion at a time specified by the Operating Partnership in its sole discretion, the Operating Partnership and the Contributors Seller will execute all closing documents (the "Closing DocumentsCLOSING DOCUMENTS") required by the Operating ----------------- Partnership this Agreement in accordance with Section 1.5 hereof and deposit the same in escrow with Xxxxx & Xxxx llpWood LLP, New York, New York, pursuant to an escrow agreement in substantially the form of Exhibit F hereto, as escrow agent of the Operating Partnership (the "Closing AgentCLOSING AGENT"), the terms of such escrow to be reasonably satisfactory to the Seller and the Operating Partnership. ------------- The transactions contemplated by this Contribution Agreement Contract and by the Closing Documents executed and deposited in connection with such exercise transactions will be consummated at the Final Closing (as hereinafter defineddefined below) only if (i) the closing of the IPO (the "IPO ClosingCLOSING") is consummated by the earlier of (a) ----------- fifteen (15) business days after the date of the Initial Closing and (b) the Termination Date and (ii) the Total Company Enterprise Value (as defined in Exhibit A) is equal to or greater than $405,000,000Date. If the IPO Closing occurs by such date:
(a) The Operating Partnership shall, contemporaneously with the IPO Closing, (x) cause to be delivered to the Closing Agent with respect to each Contributor (i) the cash portion of such Contributor's Consideration, if any an assumption (such cash portion, the "Cash PortionASSUMPTION AGREEMENT"), ) of the Existing Mortgage (as defined in EXHIBIT C hereof) and (ii) if applicable, a certificate of ------------ the General Partner of the Operating Partnership certifying that such Contributor the Seller has been or will be, effective upon the Final Closing (as hereinafter defined), admitted as a limited partner of the Operating Partnership and that the Operating Partnership's books and records indicate or will indicate that such Contributor the Seller is the holder of the number of Units which are called for pursuant to the Consideration as adjusted pursuant to the provisions hereof, including, without limitation, Article IV hereof and (y) pay to the Seller the cash portion of the Consideration, as adjusted pursuant to the provisions hereof, set forth in clause (b) of EXHIBIT C;
(b) upon receipt of the Consideration set forth in subclause (x) of clause (a) aboveabove and confirmation by the Closing Agent that the cash portion of the Consideration set forth in subclause (y) of clause (a) above has been wired to the Seller, the Closing Agent will release the Closing Documents to the Operating Partnership and/or the Seller as contemplated by the escrow agreement with the Closing Agent and/or this Contract and deliver to the Contributor Seller the Cash Portion, if any, Assumption Agreement and, if requested by the ContributorSeller, a copy of such General Partner's certificatecertificate referred to is subclause (x) of clause (a) above; and
(c) the transactions described or otherwise contemplated herein or in the Closing Documents will thereupon be deemed to have been consummated simultaneously with the IPO Closing (such consummation, the "Final ClosingFINAL CLOSING"). ------------- Notwithstanding the above, the Operating Partnership may, in its sole discretion, elect not to complete the acquisition of all or any portion of the Interests of any Contributor only in the event that such Contributor the Seller specifies, in its Assignment the documents to be delivered pursuant to Section 1.51.5(b) hereof, a breach of or other exception with respect to Article 2 hereof or has otherwise materially breached this Contribution Agreement (any Contract, the Operating Partnership may, in its sole discretion and as for its sole right, remedy and privilege in such Contributorcircumstance, a "Non-Complying ------------- Contributor")elect either to waive such breach or other exception and complete the acquisition of the Premises or not to complete the acquisition of the Premises, in which latter case the Operating Partnership shall, in lieu of the delivery with respect to such Contributor pursuant to clause (a) above, notify the Closing Agent of such election and direct the Closing Agent to return such Contributor's the Closing Documents and Ancillary Agreements (as defined below) to such Contributor. The election of the Operating Partnership to not acquire all or Seller and thereafter no party shall have any portion of the Interests of a particular Non-Complying Contributor shall not affect the obligations of any other Contributor further liability hereunder, including any other Non-Complying Contributor. The risk of loss to an Asset Entity's Assets the Building and Personal Property prior to the Final Closing shall be borne by such Asset Entitythe Seller. If, prior to the Final Closing, any a material portion of an Asset Entity's Assets the Building and Personal Property shall be destroyed or damaged by fire or other casualty, then this Contribution Agreement Contract may, at the option of the Operating Partnership, to be terminated with respect to the Asset Entityexercised within 15 days after any such occurrence, the Assets of which have been destroyed or damagedbe terminated. If, after the occurrence of any such casualty affecting an Asset Entity's Assetscasualty, this Contribution Agreement Contract is not so terminated relative to such Asset Entityterminated, the Operating Partnership may elect shall, subject to the provisions of this Contract, (ia) purchase the given Contributors' Interests in such Asset Entity or Assets, as the case may be, Premises and (iib) direct such Contributors the Seller to pay or cause to be paid to the Operating Partnership (subject to the rights of the holder of the Existing Mortgage) any sums collected under any policies of insurance because of damage due to such casualty not utilized in restoring and or repairing the damage caused by any such occurrence and otherwise assign assign, without recourse, to the Operating Partnership all rights to collect such sums as may then be uncollected; provided, however, that the Contributors Seller shall not adjust or settle any insurance claim without the Operating Partnership's prior written consent, not to be unreasonably withheld or delayed. Under such circumstances, the Consideration payable upon such purchase shall be reduced by the amount As used herein "a material portion of any deductibles under the applicable insurance policies. If the IPO Closing does not occur by the earlier of (a) fifteen (15) business days after the date of the Initial Closing and (b) the Termination Date, then, except as set forth in Section 1.8, neither party shall have any obligations under the Closing Documents or under any agreements or instruments executed in connection with the transactions contemplated hereunder or thereunder (such other agreements or instruments, collectively, "Ancillary --------- Agreements"), this Contribution Agreement, the Closing Documents and the ---------- Ancillary Agreements shall be deemed null and void ab initio and the Closing --------- Agent will be, and is hereby, directed to destroy the Closing Documents and any Ancillary Agreement it holds and return to the Operating Partnership the Consideration, if any, delivered by the Operating Partnership to the Closing Agent in accordance with the previous paragraph.the
Appears in 1 contract
Closing; Condition to Obligations. In connection with its acquisition --------------------------------- of the Contributors' Interests, the Operating Partnership will notify the Contributors of a closing date, which date will be no earlier than five (5) business days after such notification and no later than December 15, 1998 (fifteen (15) business days prior to the Termination Date), for the initial closing (the "Initial Closing") of the acquisition contemplated by this --------------- Contribution Agreement. At or before such Initial Closing, which shall be held at the offices of Xxxxx & Wood llp, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other place as is determined by the Operating Partnership in its sole discretion at a time specified by the Operating Partnership in its sole discretion, the Operating Partnership and the Contributors will execute all closing documents (the "Closing Documents") required by the Operating ----------------- Partnership in accordance with Section 1.5 hereof and deposit the same in escrow with Xxxxx & Xxxx llp, New York, New York, pursuant to an escrow agreement in substantially the form of Exhibit F hereto, as escrow agent of the Operating Partnership (the "Closing Agent"). ------------- The transactions contemplated by this Contribution Agreement and by the Closing Documents executed and deposited in connection with such exercise will be consummated at the Final Closing (as hereinafter defined) only if (i) the closing of the IPO (the "IPO Closing") is consummated by the earlier of (a) ----------- fifteen (15) business days after the date of the Initial Closing and (b) the Termination Date and (ii) the Total Company Enterprise Value (as defined in Exhibit A) is equal to or greater than $405,000,000. If the IPO Closing occurs by such date:
(a) The Operating Partnership shall, contemporaneously with the IPO Closing, cause to be delivered to the Closing Agent with respect to each Contributor (i) the cash portion of such Contributor's Consideration, if any (such cash portion, the "Cash Portion"), and (ii) if applicable, a certificate of ------------ the General Partner of the Operating Partnership certifying that such Contributor has been or will be, effective upon the Final Closing (as hereinafter defined), admitted as a limited partner of the Operating Partnership and that the Operating Partnership's books and records indicate or will indicate that such Contributor is the holder of the number of Units which are called for pursuant to the Consideration as adjusted pursuant to Article IV hereof;
(b) upon receipt of the Consideration set forth in clause (a) above, the Closing Agent will release the Closing Documents to the Operating Partnership and deliver to the Contributor the Cash Portion, if any, and, if requested by the Contributor, a copy of such General Partner's certificate; and
(c) the transactions described or otherwise contemplated herein or in the Closing Documents will thereupon be deemed to have been consummated simultaneously with the IPO Closing (such consummation, the "Final Closing"). ------------- Notwithstanding the above, the Operating Partnership may, in its sole discretion, elect not to complete the acquisition of all or any portion of the Interests of any Contributor only in the event that such Contributor specifies, in its Assignment delivered pursuant to Section 1.5, a breach of or other exception with respect to Article 2 hereof or has otherwise materially breached this Contribution Agreement (any such Contributor, a "Non-Complying ------------- Contributor"), in which case the Operating Partnership shall, in lieu of the delivery with respect to such Contributor pursuant to clause (a) above, notify the Closing Agent of such election and direct the Closing Agent to return such Contributor's Closing Documents and Ancillary Agreements (as defined below) to such Contributor. The election of the Operating Partnership to not acquire all or any portion of the Interests of a particular Non-Complying Contributor shall not affect the obligations of any other Contributor hereunder, including any other Non-Complying Contributor. The risk of loss to an Asset Entity's Assets prior to Closing shall be borne by such Asset Entity. If, prior to the Final Closing, any of an Asset Entity's Assets shall be destroyed or damaged by fire or other casualty, then this Contribution Agreement may, at the option of the Operating Partnership, be terminated with respect to the Asset Entity, the Assets of which have been destroyed or damaged. If, after the occurrence of any such casualty affecting an Asset Entity's Assets, this Contribution Agreement is not so terminated relative to such Asset Entity, the Operating Partnership may elect to (i) purchase the given Contributors' Interests in such Asset Entity or Assets, as the case may be, and (ii) direct such Contributors to pay or cause to be paid to the Operating Partnership any sums collected under any policies of insurance because of damage due to such casualty and otherwise assign to the Operating Partnership all rights to collect such sums as may then be uncollected; provided, however, that the Contributors shall not adjust or settle any insurance claim without the Operating Partnership's prior written consent, not to be unreasonably withheld or delayed. Under such circumstances, the Consideration payable upon such purchase shall be reduced by the amount of any deductibles under the applicable insurance policies. If the IPO Closing does not occur by the earlier of (a) fifteen (15) business days after the date of the Initial Closing and (b) the Termination Date, then, except as set forth in Section 1.8, neither party shall have any obligations under the Closing Documents or under any agreements or instruments executed in connection with the transactions contemplated hereunder or thereunder (such other agreements or instruments, collectively, "Ancillary --------- Agreements"), this Contribution Agreement, the Closing Documents and the ---------- Ancillary Agreements shall be deemed null and void ab initio and the Closing --------- Agent will be, and is hereby, directed to destroy the Closing Documents and any Ancillary Agreement it holds and return to the Operating Partnership the Consideration, if any, delivered by the Operating Partnership to the Closing Agent in accordance with the previous paragraph.
Appears in 1 contract
Closing; Condition to Obligations. In connection with its acquisition --------------------------------- of the Contributors' InterestsPremises, the Operating Partnership will notify the Contributors Seller of a closing date, which date will be no earlier than five (5) business days after such notification and no later than December 15March 10, 1998 (fifteen (15) business days prior to the Termination Date), for the initial closing (the "Initial ClosingINITIAL CLOSING") of the acquisition contemplated by this --------------- Contribution AgreementContract. At or before such the Initial Closing, which shall be held at the offices of Xxxxx & Wood llpXxxx LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other place as is determined by the Operating Partnership in its sole discretion at a time specified by the Operating Partnership in its sole discretion, the Operating Partnership and the Contributors Seller will execute all closing documents (the "Closing DocumentsCLOSING DOCUMENTS") required by the Operating ----------------- Partnership in accordance with Section 1.5 hereof and deposit the same in escrow with Xxxxx & Xxxx llpWood LLP, New York, New York, pursuant to an escrow agreement in substantially the form of Exhibit F hereto, as escrow agent of the Operating Partnership (the "Closing AgentCLOSING AGENT"). ------------- The transactions contemplated by this Contribution Agreement Contract and by the Closing Documents executed and deposited in connection with such exercise transactions will be consummated at the Final Closing (as hereinafter defineddefined below) only if (i) the closing of the IPO (the "IPO ClosingCLOSING") is consummated by the earlier of (a) ----------- fifteen (15) business days after the date of the Initial Closing and (b) the Termination Date and (ii) the Total Company Enterprise Value (as defined in Exhibit A) is equal to or greater than $405,000,000Date. If the IPO Closing occurs by such date:
(a) The Operating Partnership shall, contemporaneously with the IPO Closing, cause to be delivered to the Closing Agent with respect to each Contributor the Seller (i) the cash portion of such Contributor's Consideration, if any an assumption (such cash portion, the "Cash PortionASSUMPTION AGREEMENT") of the Existing Mortgages (as defined in EXHIBIT C hereof), and (ii) if applicable, a certificate of ------------ the General Partner of the Operating Partnership certifying that such Contributor the Seller has been or will be, effective upon the Final Closing (as hereinafter defined), admitted as a limited partner of the Operating Partnership and that the Operating Partnership's books and records indicate or will indicate that such Contributor the Seller is the holder of the number of Units which are called for pursuant to the Consideration as adjusted pursuant to Article IV hereof;
(b) upon receipt of the Consideration set forth in clause (a) above, the Closing Agent will release the Closing Documents to the Operating Partnership and deliver to the Contributor Seller the Cash Portion, if any, Assumption Agreement and, if requested by the ContributorSeller, a copy of such General Partner's certificate; and
(c) the transactions described or otherwise contemplated herein or in the Closing Documents will thereupon be deemed to have been consummated simultaneously with the IPO Closing (such consummation, the "Final ClosingFINAL CLOSING"). ------------- Notwithstanding the above, the Operating Partnership may, in its sole discretion, elect not to complete the acquisition of all or any portion of the Interests of any Contributor Premises only in the event that such Contributor the Seller specifies, in its Assignment the documents to be delivered pursuant to Section 1.51.5(a)(ii) hereof, a breach of or other exception with respect to Article 2 hereof or has otherwise materially breached this Contribution Agreement (any such Contributor, a "Non-Complying ------------- Contributor")Contract, in which case the Operating Partnership shall, in lieu of the delivery with respect to such Contributor pursuant to clause (a) above, notify the Closing Agent of such election and direct the Closing Agent to return such Contributor's the Closing Documents and Ancillary Agreements (as defined below) to such Contributor. The election of the Operating Partnership to not acquire all or any portion of the Interests of a particular Non-Complying Contributor shall not affect the obligations of any other Contributor hereunder, including any other Non-Complying ContributorSeller. The risk of loss to an Asset Entity's Assets the Premises prior to the Final Closing shall be borne by such Asset Entitythe Seller. If, prior to the Final Closing, any of an Asset Entity's Assets the Premises shall be destroyed or damaged by fire or other casualty, then this Contribution Agreement Contract may, at the option of the Operating Partnership, be terminated with respect to the Asset Entity, the Assets of which have been destroyed or damagedterminated. If, after the occurrence of any such casualty affecting an Asset Entity's Assetscasualty, this Contribution Agreement Contract is not so terminated relative to such Asset Entityterminated, the Operating Partnership may elect to (ia) purchase the given Contributors' Interests in such Asset Entity or Assets, as the case may be, Premises and (iib) direct such Contributors the Seller to pay or cause to be paid to the Operating Partnership any sums collected under any policies of insurance because of damage due to such casualty and otherwise assign to the Operating Partnership all rights to collect such sums as may then be uncollected; provided, however, that the Contributors Seller shall not adjust or settle any insurance claim without the Operating Partnership's prior written consent, not to be unreasonably withheld or delayed. Under such circumstances, the Consideration payable in Units upon such purchase shall be reduced by the amount of any deductibles under the applicable insurance policies. If the IPO Closing does not occur by the earlier of (a) fifteen (15) business days after the date of the Initial Closing and (b) the Termination Date, then, except as set forth in Section 1.81.8 hereof, neither party shall have any obligations under the Closing Documents or under any agreements or instruments executed in connection with the transactions contemplated hereunder or thereunder (such other agreements or instruments, collectively, "Ancillary --------- AgreementsANCILLARY AGREEMENTS"), this Contribution AgreementContract, the Closing Documents and the ---------- Ancillary Agreements shall be deemed null and void ab initio AB INITIO and the Closing --------- Agent will be, and is hereby, directed to destroy the Closing Documents and any Ancillary Agreement it holds and return to the Operating Partnership the Consideration, if any, delivered by the Operating Partnership to the Closing Agent in accordance with the previous paragraphAgent.
Appears in 1 contract
Closing; Condition to Obligations. In connection with its --------------------------------- acquisition --------------------------------- of the Contributors' Interests, the Operating Partnership will notify the Contributors of a closing date, which date will be no earlier than five (5) business days after such notification and no later than December 15, 1998 (fifteen (15) business days prior to the Termination Date), for the initial closing (the "Initial Closing") of the acquisition contemplated by this --------------- Contribution Agreement. At or before such Initial Closing, which shall be held at the offices of Xxxxx & Wood llp, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other place as is determined by the Operating Partnership in its sole discretion at a time specified by the Operating Partnership in its sole discretion, the Operating Partnership and the Contributors will execute all closing documents (the "Closing Documents") required by the Operating ----------------- Partnership in accordance with Section 1.5 hereof and deposit the same in escrow with Xxxxx & Xxxx llp, New York, New York, pursuant to an escrow agreement in substantially the form of Exhibit F hereto, as escrow agent of the Operating Partnership (the "Closing Agent"). ------------- The transactions contemplated by this Contribution Agreement and by the Closing Documents executed and deposited in connection with such exercise will be consummated at the Final Closing (as hereinafter defined) only if (i) the closing of the IPO (the "IPO Closing") is consummated by the earlier of (a) ----------- fifteen (15) business days after the date of the Initial Closing and (b) the Termination Date and (ii) the Total Company Enterprise Value (as defined in Exhibit A) is equal to or greater than $405,000,000. If the IPO Closing occurs by such date:
(a) The Operating Partnership shall, contemporaneously with the IPO Closing, cause to be delivered to the Closing Agent with respect to each Contributor (i) the cash portion of such Contributor's Consideration, if any (such cash portion, the "Cash Portion"), and (ii) if applicable, a certificate of ------------ the General Partner of the Operating Partnership certifying that such Contributor has been or will be, effective upon the Final Closing (as hereinafter defined), admitted as a limited partner of the Operating Partnership and that the Operating Partnership's books and records indicate or will indicate that such Contributor is the holder of the number of Units which are called for pursuant to the Consideration as adjusted pursuant to Article IV hereof;
(b) upon receipt of the Consideration set forth in clause (a) above, the Closing Agent will release the Closing Documents to the Operating Partnership and deliver to the Contributor the Cash Portion, if any, and, if requested by the Contributor, a copy of such General Partner's certificate; and
(c) the transactions described or otherwise contemplated herein or in the Closing Documents will thereupon be deemed to have been consummated simultaneously with the IPO Closing (such consummation, the "Final Closing"). ------------- Notwithstanding the above, the Operating Partnership may, in its sole discretion, elect not to complete the acquisition of all or any portion of the Interests of any Contributor only in the event that such Contributor specifies, in its Assignment delivered pursuant to Section 1.5, a breach of or other exception with respect to Article 2 hereof or has otherwise materially breached this Contribution Agreement (any such Contributor, a "Non-Complying ------------- Contributor"), in which case the Operating Partnership shall, in lieu of the delivery with respect to such Contributor pursuant to clause (a) above, notify the Closing Agent of such election and direct the Closing Agent to return such Contributor's Closing Documents and Ancillary Agreements (as defined below) to such Contributor. The election of the Operating Partnership to not acquire all or any portion of the Interests of a particular Non-Complying Contributor shall not affect the obligations of any other Contributor hereunder, including any other Non-Complying Contributor. The risk of loss to an Asset Entity's Assets prior to Closing shall be borne by such Asset Entity. If, prior to the Final Closing, any of an Asset Entity's Assets shall be destroyed or damaged by fire or other casualty, then this Contribution Agreement may, at the option of the Operating Partnership, be terminated with respect to the Asset Entity, the Assets of which have been destroyed or damaged. If, after the occurrence of any such casualty affecting an Asset Entity's Assets, this Contribution Agreement is not so terminated relative to such Asset Entity, the Operating Partnership may elect to (i) purchase the given Contributors' Interests in such Asset Entity or Assets, as the case may be, and (ii) direct such Contributors to pay or cause to be paid to the Operating Partnership any sums collected under any policies of insurance because of damage due to such casualty and otherwise assign to the Operating Partnership all rights to collect such sums as may then be uncollected; provided, however, that the Contributors shall not adjust or settle any insurance claim without the Operating Partnership's prior written consent, not to be unreasonably withheld or delayed. Under such circumstances, the Consideration payable upon such purchase shall be reduced by the amount of any deductibles under the applicable insurance policies. If the IPO Closing does not occur by the earlier of (a) fifteen (15) business days after the date of the Initial Closing and (b) the Termination Date, then, except as set forth in Section 1.8, neither party shall have any obligations under the Closing Documents or under any agreements or instruments executed in connection with the transactions contemplated hereunder or thereunder (such other agreements or instruments, collectively, "Ancillary --------- Agreements"), this Contribution Agreement, the Closing Documents and the ---------- Ancillary Agreements shall be deemed null and void ab initio and the Closing --------- Agent will be, and is hereby, directed to destroy the Closing Documents and any Ancillary Agreement it holds and return to the Operating Partnership the Consideration, if any, delivered by the Operating Partnership to the Closing Agent in accordance with the previous paragraph.
Appears in 1 contract
