Covenants of the Contributor. (a) From the date hereof through the Closing, and except in connection with the Formation Transactions, the Contributor shall not, without the prior written consent of the Operating Partnership: (i) Sell, transfer (or agree to sell or transfer) or otherwise dispose of, or cause the sale, transfer or disposition of (or agree to do any of the foregoing) all or any portion of its interest in the Partnership Interests or Contributed Assets or all or any portion of its interest in the Properties or related Property Interests; or (ii) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber all or any portion of its Partnership Interests or Contributed Assets. (b) From the date hereof through the Closing, and except in connection with the Formation Transactions, the Contributor shall, to the extent within its control, conduct the Partnerships’ business in the ordinary course of business consistent with past practice, and shall, to the extent within its control and consistent with its obligations under the Partnerships’ operating agreements, not permit any Partnership, without the prior written consent of the Operating Partnership, to: (i) Enter into (x) any material transaction not in the ordinary course of business with respect to any Property, nor (y) enter into any amendment to any lease or similar occupancy agreement or document at any Property; provided that the Operating Partnership’s consent will not be unreasonably withheld or delayed and the Operating Partnership will respond to any request for consent to such New Lease Document or other occupancy agreement within ten (10) business days follow its receipt of written notice of the proposed material terms thereof (with silence being deemed to be the Operating Partnership’s consent); (ii) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber (other than by Permitted Encumbrances) any assets of such Partnership, except (A) liens for Taxes not delinquent, (B) purchase money security interests in the ordinary course of such Partnership’s business, and (C) mechanics’ liens being disputed by such Partnership in good faith and by appropriate proceeding in the ordinary course of such Partnership’s business; (iii) Cause or permit any Partnership to change the existing use of any Property; (iv) Cause or take any action that would render any of the representations or warranties regarding the Properties as set forth in Exhibit C to be untrue in any material respect; (v) File an entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat any Partnership or any subsidiary entity of a Partnership as an association taxable as a corporation for federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended tax return; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; or (vi) Make any distribution to its partners or members related to the Partnerships or the Properties, except for cash distributions in the ordinary course of business consistent with past practices, distributions necessary to maintain the REIT status of any direct or indirect feeder entity of the Contributor that is a REIT, or as permitted by this Agreement. (c) Prior to Closing, the Contributor shall cooperate with the Operating Partnership and use commercially reasonable efforts to obtain the execution by the General Services Administration (“GSA”) of any required Novation Agreement in a form typical or required for a GSA Lease by and among GSA, the Contributor (or applicable Partnership) and the Operating Partnership for each GSA Lease (a “Novation Agreement”). Promptly after Closing, for each of the GSA Leases and to the extent Novation Agreements were not obtained as of Closing, Contributor shall cooperate with the Operating Partnership to obtain the execution by GSA of any required Novation Agreement. (d) The provisions of this Section 4.1 shall survive Closing.
Appears in 2 contracts
Samples: Contribution Agreement (Easterly Government Properties, Inc.), Contribution Agreement (Easterly Government Properties, Inc.)
Covenants of the Contributor. (a) From the date hereof through the Closing, and except in connection with the Formation Transactions, the Contributor shall not, without the prior written consent of the Operating Partnership:
(i) Sell, transfer (or agree to sell or transfer) or otherwise dispose of, or cause the sale, transfer or disposition of (or agree to do any of the foregoing) all or any portion of its interest in the Partnership Interests or Contributed Assets or all or any portion of its interest in the Properties Property or the related Property Interests; or
(ii) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber all or any portion of its Partnership Interests or Contributed Assets.
(b) From the date hereof through the ClosingClosing (or such other date set forth below), and except in connection with the Formation Transactions, the Contributor shall, to the extent within its control, conduct the Partnerships’ Partnership’s business in the ordinary course of business consistent with past practice, and shall, to the extent within its control and consistent with its obligations under the Partnerships’ Partnership’s operating agreements, not permit any the Partnership, without the prior written consent of the Operating Partnership, to:
(i) Enter into (x) any material transaction not in the ordinary course of business with respect to any Property, the Property nor (y) enter into subject to Section 4.3 below, any amendment to any lease New Lease Document or similar other occupancy agreement or document at any Propertyagreement; provided provided, that the Operating Partnership’s consent to any New Lease Document or other occupancy agreement will not be unreasonably withheld conditioned or delayed withheld, and the Operating Partnership will respond to any request for consent to such New Lease Document or other occupancy agreement within ten two (102) business days follow following its receipt of written notice of the proposed material terms thereof (with silence being deemed to be the Operating Partnership’s consent); provided further, however, that if the Pre-Closing Date has not occurred on or before the date which is ninety (90) days following the Effective Date, then subject to Section 4.3 below, the Operating Partnership’s consent shall not be required in connection with any New Lease Document or other occupancy agreement thereafter;
(ii) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber (other than by Permitted Encumbrances) any assets of such the Partnership, except (A) liens for Taxes taxes not delinquent, (B) purchase money security interests in the ordinary course of such the Partnership’s business, and (C) mechanics’ liens being disputed by such the Partnership in good faith and by appropriate proceeding in the ordinary course of such the Partnership’s business;
(iii) Cause or permit any the Partnership to change the existing use of any the Property;
(iv) Cause or take any action that would render any of the representations or warranties regarding the Properties Property as set forth in on Exhibit C to be untrue in any material respect;
(v) File an entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat any Partnership or any subsidiary entity of a the Partnership as an association taxable as a corporation for federal income tax purposes; make or change any other Tax tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxestaxes; change any annual Tax tax accounting period; adopt or change any method of Tax tax accounting; file any amended tax return; enter into any Tax tax allocation agreement, Tax tax sharing agreement, Tax tax indemnity agreement or closing agreement relating to any Taxtax; surrender of any right to claim a Tax tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax tax claim or assessment; or
(vi) Make any distribution to its partners or members related to the Partnerships Partnership or the PropertiesProperty, except for cash distributions in the ordinary course of business consistent with past practices, distributions necessary to maintain the REIT status of any direct or indirect feeder entity of the Contributor that is a REIT, practices or as permitted by this Agreement; provided, however, that the Contributor shall give twenty (20) days advance notice to the Operating Partnership thereof, and any such distribution shall require the Operating Partnership’s consent (which shall not be unreasonably withheld); and provided further, that such notice and consent shall not be required in connection with the distribution of any Excluded Assets at Closing as contemplated by Section 1.3.
(c) Prior to From the date hereof through the Closing, the Contributor shall cooperate with not (and shall not cause or permit the Partnership to), without the prior written consent of the Operating Partnership and Partnership, (i) increase the outstanding principal balance of the Existing Loan other than in connection with future disbursements that are permitted under the Existing Loan Documents, or (ii) retain, use commercially reasonable efforts or disburse any funds from any future disbursement of proceeds thereof other than for the purposes for which such proceeds are permitted to obtain be used pursuant to the execution by Existing Loan Documents. Additionally, from the General Services Administration (“GSA”) of any required Novation Agreement in a form typical or required for a GSA Lease by and among GSAdate hereof through the Closing, the Contributor shall deliver (or applicable Partnershipcause the Partnership to deliver) and to the Operating Partnership for each GSA Lease (a “Novation Agreement”). Promptly after ClosingPartnership, for each of the GSA Leases and concurrently with such delivery to the extent Novation Agreements were not obtained as Lender, a copy of Closingany correspondence or documentation delivered by the Contributor or Partnership under the Existing Loan Documents in connection with a request for a disbursement of any future proceeds thereunder, Contributor and shall cooperate with deliver or cause to be delivered to the Operating Partnership, promptly upon receipt, any correspondence or other documentation received by the Contributor or Partnership from the Lender with respect to obtain the execution by GSA of any required Novation Agreementsuch requests for advances thereunder.
(d) The provisions of this Section 4.1 shall survive Closing.
Appears in 2 contracts
Samples: Contribution Agreement, Contribution Agreement (Hudson Pacific Properties, Inc.)
Covenants of the Contributor. (a) From the date hereof through the Closing, and except in connection with the Formation Transactions, the Contributor shall not, without the prior written consent of the Operating Partnership:
(i) Sell, transfer (or agree to sell or transfer) or otherwise dispose of, or cause the sale, transfer or disposition of (or agree to do any of the foregoing) all or any portion of its interest in the Partnership Interests or Contributed Assets or all or any portion of its interest in the Properties or related Property Company Interests; or;
(ii) Except as otherwise disclosed in the Disclosure Schedule, mortgageMortgage, pledge or encumber all or any portion of the Contributed Company Interests, except in connection with refinancing of any Existing Loans undertaken in the ordinary course of business consistent with past practice; or
(iii) Make any distribution to its Partnership Interests or Contributed Assetsmembers, except for cash distributions in the ordinary course of business consistent with past practices.
(b) From the date hereof through the Closing, and except in connection with the Formation TransactionsTransactions and the sale of the Designated Properties, the Contributor shall, to the extent within its control, conduct it business and the Partnerships’ business of the Contributed Companies in the ordinary course of business consistent with past practice, and shall, to the extent within its control and consistent with its obligations under the PartnershipsContributed Companies’ operating agreements, not permit any PartnershipContributed Company, without the prior written consent of the Operating Partnership, to:
(i) Enter into (x) any material transaction not in the ordinary course of business with respect to any Property, nor (y) enter into any amendment to any lease or similar occupancy agreement or document at any Property; provided that the Operating Partnership’s consent will not be unreasonably withheld or delayed and the Operating Partnership will respond to any request for consent to such New Lease Document or other occupancy agreement within ten (10) business days follow its receipt of written notice of the proposed material terms thereof (with silence being deemed to be the Operating Partnership’s consent);
(ii) Except as otherwise disclosed in the Disclosure Schedule, mortgageMortgage, pledge or encumber (other than by Permitted Encumbrances) any assets of such PartnershipContributed Company, except (A) liens for Taxes not delinquent, (B) purchase money security interests in the ordinary course of such PartnershipContributed Company’s business, and (C) mechanics’ liens being disputed by such Partnership Contributed Company in good faith and by appropriate proceeding in the ordinary course of such PartnershipContributed Company’s business;, and (D) liens incurred in connection with refinancing of any Existing Loans undertaken in the ordinary course of business consistent with past practice.
(iii) Cause or permit any Partnership to change the existing use of any Property;
(ivii) Cause or take any action that would render any of the representations or warranties regarding the Properties as set forth in Exhibit C to be untrue in any material respect;
(viii) File an entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Contributed Company Classification Election) to treat any Partnership Contributed Company or any subsidiary entity of a Partnership Contributed Company as an association taxable as a corporation for federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended tax return; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; or
(viiv) Make any distribution to its partners or members related to the Partnerships or the Propertiesmembers, except for cash distributions in the ordinary course of business consistent with past practices, distributions necessary to maintain the REIT status of any direct or indirect feeder entity of the Contributor that is a REIT, or as permitted by this Agreement.
(c) Prior to Closing, the Contributor shall cooperate with the Operating Partnership and use commercially reasonable efforts to obtain the execution by the General Services Administration (“GSA”) of any required Novation Agreement in a form typical or required for a GSA Lease by and among GSA, the Contributor (or applicable Partnership) and the Operating Partnership for each GSA Lease (a “Novation Agreement”). Promptly after Closing, for each of the GSA Leases and to the extent Novation Agreements were not obtained as of Closing, Contributor shall cooperate with the Operating Partnership to obtain the execution by GSA of any required Novation Agreement.
(d) The provisions of this Section 4.1 shall survive Closing.
Appears in 1 contract
Samples: Contribution Agreement (Strawberry Fields REIT, Inc.)
Covenants of the Contributor. (a) 6.1.1 From the date hereof Effective Date through the Closing, and except in connection with the Formation Transactions, the Contributor shall not, without the prior written consent of the Operating Partnership:
(ia) Sell, transfer (or agree to sell or transfer) ), assign or otherwise dispose of, or cause the sale, transfer transfer, assignment or disposition of (or agree to do any of the foregoing) all or any portion of its interest in the Partnership Interests or Contributed Assets or Assumed Agreements or all or any portion of its interest in the Properties or related Property InterestsProperty; or
(iib) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber all or any portion of its Partnership Interests Property or Contributed Assets.
(b) 6.1.2 From the date hereof Effective Date through the Closing, and except in connection with the Formation Transactions, the Contributor shall, shall conduct its business with respect to the extent within its control, conduct the Partnerships’ business Property in the ordinary course of business consistent with past practicepractices, and shall, shall to the extent within its control and consistent with its obligations under the Partnerships’ operating agreementscontrol, not permit any Partnershipnot, without the prior written consent of the Operating Partnership, to:
(ia) Enter into (x) any material transaction not in the ordinary course of business with respect to any Property, nor (y) enter into any amendment to any lease or similar occupancy agreement or document at any Property; provided that the Operating Partnership’s consent will not be unreasonably withheld or delayed and the Operating Partnership will respond to any request for consent to such New Lease Document or other occupancy agreement within ten (10) business days follow its receipt of written notice of the proposed material terms thereof (with silence being deemed to be the Operating Partnership’s consent);
(iib) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber (other than by Permitted EncumbrancesLiens) the Property or any assets of such Partnershiprelated to the Property or the Contributed Assets, except (Ai) liens for Taxes taxes not delinquent, (B) purchase money security interests in the ordinary course of such Partnership’s business, and (C) mechanics’ liens delinquent or being disputed by such Partnership the Contributor in good faith and by appropriate proceeding in the ordinary course of such Partnershipthe Contributor’s business, and (ii) mechanics’ liens being disputed by the Contributor in good faith and by appropriate proceeding in the ordinary course of the Contributor’s business;
(iiic) Cause or permit any Partnership a change to change the existing use of any Propertythe Property other than as a result of entering into new Leases in compliance with this Agreement;
(ivd) Cause or intentionally take any action that would render any of the representations or warranties regarding the Properties Property as set forth in Exhibit C to be this Agreement untrue in any material respect;
respect (v) File an entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat any Partnership or any subsidiary entity of a Partnership as an association taxable other than as a corporation for federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment result of entering into new Leases in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended tax return; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessmentcompliance with this Agreement); or
(vi) Make any distribution to its partners or members related to the Partnerships or the Properties, except for cash distributions in the ordinary course of business consistent with past practices, distributions necessary to maintain the REIT status of any direct or indirect feeder entity of the Contributor that is a REIT, or as permitted by this Agreement.
(c) Prior to Closing, the Contributor shall cooperate with the Operating Partnership and use commercially reasonable efforts to obtain the execution by the General Services Administration (“GSA”) of any required Novation Agreement in a form typical or required for a GSA Lease by and among GSA, the Contributor (or applicable Partnership) and the Operating Partnership for each GSA Lease (a “Novation Agreement”). Promptly after Closing, for each of the GSA Leases and to the extent Novation Agreements were not obtained as of Closing, Contributor shall cooperate with the Operating Partnership to obtain the execution by GSA of any required Novation Agreement.
(d) The provisions of this Section 4.1 shall survive Closing.
Appears in 1 contract
Samples: Contribution Agreement (Lodging Fund REIT III, Inc.)
Covenants of the Contributor. (a) 6.1.1 From the date hereof Effective Date through the Closing, and except in connection with the Formation Transactions, the Contributor shall not, without the prior written consent of the Operating Partnership:
(ia) Sell, transfer (or agree to sell or transfer) ), assign or otherwise dispose of, or cause the sale, transfer transfer, assignment or disposition of (or agree to do any of the foregoing) all or any portion of its interest in the Partnership Interests or Contributed Assets or Assumed Agreements or all or any portion of its interest in the Properties or related Property InterestsProperty; or
(iib) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber all or any portion of its Partnership Interests Property or Contributed Assets.
(b) 6.1.2 From the date hereof Effective Date through the Closing, and except in connection with the Formation Transactions, the Contributor shall, shall conduct its business with respect to the extent within its control, conduct the Partnerships’ business Property in the ordinary course of business consistent with past practicepractices, and shall, shall to the extent within its control and consistent with its obligations under the Partnerships’ operating agreementscontrol, not permit any Partnershipnot, without the prior written consent of the Operating Partnership, to:
(ia) Enter into (x) any material transaction not in the ordinary course of business with respect to any Property, nor (y) enter into any amendment to any lease or similar occupancy agreement or document at any the Property; provided that the Operating Partnership’s consent will not be unreasonably withheld or delayed and the Operating Partnership will respond to any request for consent to such New Lease Document or other occupancy agreement within ten (10) business days follow its receipt of written notice of the proposed material terms thereof (with silence being deemed to be the Operating Partnership’s consent);
(iib) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber (other than by Permitted EncumbrancesLiens) the Property or any assets of such Partnershiprelated to the Property or the Contributed Assets, except (Ai) liens for Taxes taxes not delinquent, (B) purchase money security interests in the ordinary course of such Partnership’s business, and (C) mechanics’ liens delinquent or being disputed by such Partnership the Contributor in good faith and by appropriate proceeding in the ordinary course of such Partnershipthe Contributor’s business, and (ii) mechanics’ liens being disputed by the Contributor in good faith and by appropriate proceeding in the ordinary course of the Contributor’s business;
(iiic) Cause or permit any Partnership a change to change the existing use of any Propertythe Property other than as a result of entering into new Leases in compliance with this Agreement;
(ivd) Cause or take any action that would render any of the representations or warranties regarding the Properties Property as set forth in Exhibit C to be this Agreement untrue in any material respect;
respect (v) File an entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat any Partnership or any subsidiary entity of a Partnership as an association taxable other than as a corporation for federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment result of entering into new Leases in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended tax return; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessmentcompliance with this Agreement); or
(vie) Make Enter into any distribution to its partners or members new Leases related to the Partnerships Property without Contributor’s prior written approval, which approval shall not be unreasonably withheld. The Operating Partnership shall approve or disapprove in writing any such action by the PropertiesContributor within 5 business days after receiving a written request (providing all information reasonably relevant to the Operating Partnership’s consideration) for such approval from the Contributor, except for cash distributions which approval shall be in the ordinary course of business consistent with past practices, distributions necessary to maintain the REIT status of any direct or indirect feeder entity of the Contributor that is a REIT, or as permitted by this AgreementOperating Partnership’s sole and absolute discretion.
(c) Prior to Closing, the Contributor shall cooperate with the Operating Partnership and use commercially reasonable efforts to obtain the execution by the General Services Administration (“GSA”) of any required Novation Agreement in a form typical or required for a GSA Lease by and among GSA, the Contributor (or applicable Partnership) and the Operating Partnership for each GSA Lease (a “Novation Agreement”). Promptly after Closing, for each of the GSA Leases and to the extent Novation Agreements were not obtained as of Closing, Contributor shall cooperate with the Operating Partnership to obtain the execution by GSA of any required Novation Agreement.
(d) The provisions of this Section 4.1 shall survive Closing.
Appears in 1 contract
Samples: Contribution Agreement (Lodging Fund REIT III, Inc.)
Covenants of the Contributor. (a) From the date hereof through the Closing, and except in connection with the Formation Transactions, the Contributor shall not, without the prior written consent of the Operating Partnership:
(i) Sell, transfer (or agree to sell or transfer) or otherwise dispose of, or cause the sale, transfer or disposition of (or agree to do any of the foregoing) all or any portion of its interest in the Partnership Contributed Interests or Contributed Assets or all or the Limited Liability Company’s interests in any portion of its subsidiaries, provided that the Limited Liability Company shall transfer its interests as general partner of and in any carried interest in the vehicles maintained by U.S. Government Properties or related Property InterestsIncome and Growth Fund L.P., U.S. Government Properties Income and Growth Fund II, LP and USGP II (Parallel) Fund, LP; or
(ii) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber all or any portion of its Partnership Interests or Contributed AssetsInterests.
(b) From the date hereof through the Closing, and except in connection with the Formation Transactions, the Contributor shall, to the extent within its control, conduct the Partnerships’ its business in the ordinary course of business consistent with past practice, and shall, to the extent within its control and consistent with its obligations under the Partnerships’ operating agreementsLimited Liability Company Agreement, not permit any Partnershipnot, without the prior written consent of the Operating Partnership, to:
(i) Enter into (x) any material transaction not in the ordinary course of business with respect to any Property, nor (y) enter into any amendment to any lease Limited Liability Company or similar occupancy agreement or document at any Property; provided that the Operating Partnership’s consent will not be unreasonably withheld or delayed and the Operating Partnership will respond to any request for consent to such New Lease Document or other occupancy agreement within ten (10) business days follow its receipt of written notice of the proposed material terms thereof (with silence being deemed to be the Operating Partnership’s consent)assets;
(ii) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber (other than by Permitted Encumbrances) any assets of such Partnershipthe Limited Liability Company, except (A) liens for Taxes not delinquent, (B) purchase money security interests in the ordinary course of such Partnershipthe Limited Liability Company’s business, and (C) mechanics’ liens being disputed by such Partnership the Limited Liability Company in good faith and by appropriate proceeding in the ordinary course of such Partnershipthe Limited Liability Company’s business;
(iii) Cause or permit any Partnership to change the existing use of any Property;
(iv) Cause or take any action that would render any of the representations or warranties regarding the Properties as set forth in Exhibit C to be untrue in any material respect;
(v) File an entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat any Partnership the Limited Liability Company or any subsidiary entity of a Partnership the Limited Liability Company as an association taxable as a corporation for federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended tax return; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; or
(viiv) Make any distribution to its partners or members related to the Partnerships or the Propertiesmembers, except for cash distributions in the ordinary course of business consistent with past practices, distributions necessary to maintain the REIT status of any direct or indirect feeder entity of the Contributor that is a REIT, or as permitted by this Agreement.
(c) Prior to Closing, the Contributor shall cooperate with the Operating Partnership and use commercially reasonable efforts to obtain the execution by the General Services Administration (“GSA”) of any required Novation Agreement in a form typical or required for a GSA Lease by and among GSA, the Contributor (or applicable Partnership) and the Operating Partnership for each GSA Lease (a “Novation Agreement”). Promptly after Closing, for each of the GSA Leases and to the extent Novation Agreements were not obtained as of Closing, Contributor shall cooperate with the Operating Partnership to obtain the execution by GSA of any required Novation Agreement.
(d) The provisions of this Section 4.1 shall survive Closing.
Appears in 1 contract
Samples: Contribution Agreement (Easterly Government Properties, Inc.)
Covenants of the Contributor. The Contributor covenants and agrees that between the Effective Date and the Closing Date, unless the Transferee has consented in writing to any other act or omission which shall not be unreasonably withheld, delayed or conditioned, it shall perform or observe the following:
(a) From The Contributor shall enforce Nationwide's obligations under the date hereof through Purchase Agreement and shall exercise its rights under the Closing, and except Purchase Agreement in connection with the Formation Transactions, same manner as the Contributor shall not, without would enforce such obligations and exercise such rights had the prior written consent of the Operating Partnership:
(i) Sell, transfer (or agree to sell or transfer) or otherwise dispose of, or cause the sale, transfer or disposition of (or agree to do any of the foregoing) all or any portion of its interest in the Partnership Interests or Contributed Assets or all or any portion of its interest in the Properties or related Property Interests; or
(ii) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber all or any portion of its Partnership Interests or Contributed AssetsContributor not entered into this Agreement.
(b) From The Contributor will comply in all material respects with its obligations set forth in the date hereof through Purchase Agreement and will not terminate or amend the Closing, and except in connection with the Formation Transactions, the Contributor shall, Purchase Agreement or (to the extent within its control, conduct the Partnerships’ business permitted in the ordinary course of business consistent with past practicePurchase Agreement) consent to Nationwide entering into any new agreements or leases affecting the Property or to Nationwide extending, and shallrenewing, to amending, canceling or terminating any existing agreements or leases affecting the extent within its control and consistent with its obligations under Property without first receiving the Partnerships’ operating agreements, not permit any Operating Partnership, without the 's prior written consent of the Operating Partnership, to:
(i) Enter into (x) any material transaction not in the ordinary course of business with respect to any Property, nor (y) enter into any amendment to any lease or similar occupancy agreement or document at any Property; provided that the Operating Partnership’s consent will which shall not be unreasonably withheld unreasonably, withheld, delayed or delayed and the Operating Partnership will respond to any request for consent to such New Lease Document or other occupancy agreement within ten (10) business days follow its receipt of written notice of the proposed material terms thereof (with silence being deemed to be the Operating Partnership’s consent);
(ii) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber (other than by Permitted Encumbrances) any assets of such Partnership, except (A) liens for Taxes not delinquent, (B) purchase money security interests in the ordinary course of such Partnership’s business, and (C) mechanics’ liens being disputed by such Partnership in good faith and by appropriate proceeding in the ordinary course of such Partnership’s business;
(iii) Cause or permit any Partnership to change the existing use of any Property;
(iv) Cause or take any action that would render any of the representations or warranties regarding the Properties as set forth in Exhibit C to be untrue in any material respect;
(v) File an entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat any Partnership or any subsidiary entity of a Partnership as an association taxable as a corporation for federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended tax return; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; or
(vi) Make any distribution to its partners or members related to the Partnerships or the Properties, except for cash distributions in the ordinary course of business consistent with past practices, distributions necessary to maintain the REIT status of any direct or indirect feeder entity of the Contributor that is a REIT, or as permitted by this Agreementconditioned.
(c) Prior to ClosingIf the Contributor discovers any error or omission in any Inspection Material or in any representation or warranty made in Section 4.1, the Contributor shall cooperate with will give the Operating Partnership and use commercially reasonable efforts to obtain the execution prompt written notice thereof accompanied by the General Services Administration (“GSA”) of any required Novation Agreement in a form typical or required for a GSA Lease by and among GSA, the Contributor (or applicable Partnership) and the Operating Partnership for each GSA Lease (a “Novation Agreement”). Promptly after Closing, for each of the GSA Leases and to the extent Novation Agreements were not obtained as of Closing, Contributor shall cooperate with the Operating Partnership to obtain the execution by GSA of any required Novation Agreementreasonably detailed information.
(d) The provisions Contributor shall promptly give the Operating Partnership written notice of, and promptly deliver to the Operating Partnership, a true and complete copy of any written notice the Contributor may receive, on or before the Closing Date, from any Governmental Authority, concerning a violation of any applicable Legal Requirement pertaining to the Property or of any written notice of default from Nationwide under the Purchase Agreement.
(e) At Closing, the Contributor and/or its designated Contributor Parties shall execute and deliver the amended and restated agreement of limited partnership of the Operating Partnership (the "OP AGREEMENT") in the form attached hereto as Exhibit 6.1(e).
(f) The Contributor shall cooperate, to the extent reasonably requested by the Transferee, in the preparation by the Company of any reports, registration statements or other filings required to be filed by the Company with the Securities and Exchange Commission ("SEC") relating to this Section 4.1 Agreement and the transaction(s) contemplated herein.
(g) The Contributor shall, and shall survive Closing.cause any other person designated by it to receive OP Units to, execute and deliver to the Operating Partnership and/or the Company at or prior to Closing a certificate (the "INVESTOR CERTIFICATE") to the effect that each such person (a) is acquiring the OP Units being acquired hereunder for investment (for its own account or for accounts over which it exercises investment control), and not with a view to, or for offer or sale in connection with, any distribution thereof that would be in violation of the Securities Act of 1933, as amended (the "1933 ACT"), without prejudice, however, to such person's right at all times to sell or otherwise dispose of all or any part of such OP Units pursuant to an effective registration statement under the 1933 Act, or under an exemption from such registration available under the 1933 Act, and (b) is
Appears in 1 contract
Samples: Contribution and Exchange Agreement (American Industrial Properties Reit Inc)
Covenants of the Contributor. The Contributor covenants and agrees that between the Effective Date and the Closing Date, unless the Transferee has consented in writing to any other act or omission which shall not be unreasonably withheld, delayed or conditioned, it shall perform or observe the following:
(a) From The Contributor shall enforce Merit's obligations under the date hereof through Purchase Agreements and shall exercise its rights under the Closing, and except Purchase Agreements in connection with the Formation Transactions, same manner as the Contributor would enforce such obligations and exercise such rights had the Contributor not entered into this Agreement, provided that in no event shall not, without the prior written consent of the Operating Partnership:
(i) Sell, transfer (or agree Contributor be obligated to sell or transfer) or otherwise dispose of, or cause the sale, transfer or disposition of (or agree commence litigation to do enforce any of the foregoing) all or any portion of its interest in the Partnership Interests or Contributed Assets or all or any portion of its interest in the Properties or related Property Interests; or
(ii) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber all or any portion of its Partnership Interests or Contributed Assetssuch obligations.
(b) From The Contributor will comply in all material respects with its obligations set forth in the date hereof through Purchase Documents and will not terminate or amend the Closing, and except in connection with the Formation Transactions, the Contributor shall, Purchase Agreements or (to the extent within its control, conduct the Partnerships’ business permitted in the ordinary course of business consistent with past practicePurchase Agreements) consent to Merit entering into any new agreements or leases affecting the Property or to Merit extending, and shallrenewing, to amending, canceling or terminating any existing agreements or leases affecting the extent within its control and consistent with its obligations under Property without first receiving the Partnerships’ operating agreements, not permit any Operating Partnership, without the 's prior written consent of the Operating Partnership, to:
(i) Enter into (x) any material transaction not in the ordinary course of business with respect to any Property, nor (y) enter into any amendment to any lease or similar occupancy agreement or document at any Property; provided that the Operating Partnership’s consent will which shall not be unreasonably withheld unreasonably, withheld, delayed or delayed and the Operating Partnership will respond to any request for consent to such New Lease Document or other occupancy agreement within ten (10) business days follow its receipt of written notice of the proposed material terms thereof (with silence being deemed to be the Operating Partnership’s consent);
(ii) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber (other than by Permitted Encumbrances) any assets of such Partnership, except (A) liens for Taxes not delinquent, (B) purchase money security interests in the ordinary course of such Partnership’s business, and (C) mechanics’ liens being disputed by such Partnership in good faith and by appropriate proceeding in the ordinary course of such Partnership’s business;
(iii) Cause or permit any Partnership to change the existing use of any Property;
(iv) Cause or take any action that would render any of the representations or warranties regarding the Properties as set forth in Exhibit C to be untrue in any material respect;
(v) File an entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat any Partnership or any subsidiary entity of a Partnership as an association taxable as a corporation for federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended tax return; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; or
(vi) Make any distribution to its partners or members related to the Partnerships or the Properties, except for cash distributions in the ordinary course of business consistent with past practices, distributions necessary to maintain the REIT status of any direct or indirect feeder entity of the Contributor that is a REIT, or as permitted by this Agreementconditioned.
(c) Prior to ClosingIf the Contributor obtains actual knowledge of any error or omission in any Inspection Material or in any representation or warranty made in Section 4.1, the Contributor shall cooperate with will give the Operating Partnership and use commercially reasonable efforts to obtain the execution prompt written notice thereof accompanied by the General Services Administration (“GSA”) of any required Novation Agreement in a form typical or required for a GSA Lease by and among GSA, the Contributor (or applicable Partnership) and the Operating Partnership for each GSA Lease (a “Novation Agreement”). Promptly after Closing, for each of the GSA Leases and to the extent Novation Agreements were not obtained as of Closing, Contributor shall cooperate with the Operating Partnership to obtain the execution by GSA of any required Novation Agreementreasonably detailed information.
(d) The provisions Contributor shall promptly give the Operating Partnership written notice of, and promptly deliver to the Operating Partnership, a true and complete copy of any written notice the Contributor may receive, on or before the Closing Date, from any Governmental Authority, concerning a violation of any applicable Legal Requirement pertaining to the Property or of any written notice of default from Merit under the Purchase Agreements.
(e) At Closing, the Contributor Parties shall execute and deliver: (i) the amended and restated agreement of limited partnership of the Operating Partnership (the "OP AGREEMENT") in the form attached hereto as Exhibit 6.1(f), and (ii) the Warrant Agreements.
(f) The Contributor, without cost or expense to the Contributor, shall cooperate to the extent reasonably requested in the preparation by the Company of any reports, registration statements or other filings required to be filed by the Company with the Securities and Exchange Commission ("SEC") relating to the transactions contemplated hereunder. The Contributor shall also provide (or cause Merit to provide) to the Company's representatives an original of the signed representation letter which has been approved by the Transferee's accountants.
(g) The Contributor shall, and shall cause any other person designated by it to receive OP Units and/or Company Warrants to, execute and deliver to the Operating Partnership and/or the Company at or prior to Closing a certificate in a form reasonably satisfactory to the Transferee (the "INVESTOR CERTIFICATE") to the effect that each such person (a) is acquiring the OP Units or Company Warrants being acquired hereunder for investment (for its own account or for accounts over which it exercises investment control), and not with a view to, or for offer or sale in connection with, any distribution thereof that would be in violation of the Securities Act of 1933, as amended (the "1933 ACT"), without prejudice, however, to such person's right at all times to sell or otherwise dispose of all or any part of such OP Units or Company Warrants pursuant to an effective registration statement under the 1933 Act, or under an exemption from such registration available under the 1933 Act, (b) is knowledgeable, sophisticated and experienced in business and financial matters and fully understands the limitations on transfer described above and (c) is an "accredited investor" as such term is defined in Rule 501(a) of Regulation D under the 1933 Act.
(h) Notwithstanding anything to the contrary provided in this Section 6.1 or any other provision of this Section 4.1 Agreement, (i) the Transferee agrees that the Contributor shall survive Closing.have the right, without the consent of the Transferee, to (x) amend the Purchase Agreements to accelerate the
Appears in 1 contract
Samples: Contribution and Exchange Agreement (American Industrial Properties Reit Inc)
Covenants of the Contributor. (a) From 6.1. 1From the date hereof Effective Date through the Closing, and except in connection with the Formation Transactions, the Contributor shall not, without the prior written consent of the Operating Partnership:
(ia) Sell, transfer (or agree to sell or transfer) ), assign or otherwise dispose of, or cause the sale, transfer transfer, assignment or disposition of (or agree to do any of the foregoing) all or any portion of its interest in the Partnership Interests or Contributed Assets or Assumed Agreements or all or any portion of its interest in the Properties or related Property InterestsProperty; or
(iib) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber all or any portion of its Partnership Interests Property or Contributed Assets.
(b) From 6.1. 2From the date hereof Effective Date through the Closing, and except in connection with the Formation Transactions, the Contributor shall, shall conduct its business with respect to the extent within its control, conduct the Partnerships’ business Property in the ordinary course of business consistent with past practicepractices, and shall, shall to the extent within its control and consistent with its obligations under the Partnerships’ operating agreementscontrol, not permit any Partnershipnot, without the prior written consent of the Operating Partnership, to:
(ia) Enter into (x) any material transaction not in the ordinary course of business with respect to any Property, nor (y) enter into any amendment to any lease or similar occupancy agreement or document at any Property; provided that the Operating Partnership’s consent will not be unreasonably withheld or delayed and the Operating Partnership will respond to any request for consent to such New Lease Document or other occupancy agreement within ten (10) business days follow its receipt of written notice of the proposed material terms thereof (with silence being deemed to be the Operating Partnership’s consent);
(iib) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber (other than by Permitted EncumbrancesLiens) the Property or any assets of such Partnershiprelated to the Property or the Contributed Assets, except (Ai) liens for Taxes taxes not delinquent, (B) purchase money security interests in the ordinary course of such Partnership’s business, and (C) mechanics’ liens delinquent or being disputed by such Partnership the Contributor in good faith and by appropriate proceeding in the ordinary course of such Partnershipthe Contributor’s business, and (ii) mechanics’ liens being disputed by the Contributor in good faith and by appropriate proceeding in the ordinary course of the Contributor’s business;
(iiic) Cause or permit any Partnership a change to change the existing use of any Propertythe Property other than as a result of entering into new Leases in compliance with this Agreement;
(ivd) Cause or take any action that would render any of the representations or warranties regarding the Properties Property as set forth in Exhibit C to be this Agreement untrue in any material respect;respect (other than as a result of entering into new Leases in compliance with this Agreement); or
(ve) File an entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat any Partnership or any subsidiary entity of a Partnership as an association taxable as a corporation for federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended tax return; enter Enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; or
(vi) Make any distribution to its partners or members new Leases related to the Partnerships Property. The Operating Partnership shall approve or disapprove in writing any such action by the Contributor within 5 business days after receiving a written request (providing all information reasonably relevant to the Operating Partnership’s consideration) for such approval from the Contributor, which approval shall be in the Operating Partnership’s sole and absolute discretion.
6.1. 3From the Effective Date, the Contributor agrees to provide the Operating Partnership with such tax information relating to the Property as reasonably requested by the Operating Partnership and to cooperate with the Operating Partnership with respect to its filing of tax returns;
6.1. 4From the Effective Date, the Contributor shall promptly provide notice to the Operating Partnership upon any discovery that may lead to the Contributor’s representations and warranties contained in this Agreement being incomplete, inaccurate or in any manner not completely true and correct as of the Closing Date, including without limitation, any matter which if uncured prior to the Closing Date would have such effect, even if the Contributor intends to cure, correct or remedy such matter prior to the Closing and is implementing such cure, correction or remedy. If the disclosed item(s) represents a breach by the Contributor and the Operating Partnership determines in good faith that the disclosed item(s) contained in any such notice represents an impairment in the value of the Property in excess of the Maximum Total Consideration Adjustment, then the Operating Partnership may elect, in its sole discretion, to terminate this Agreement and, if such election is made, shall receive a full return of the Xxxxxxx Money. In the alternative, in the event that such impairment in value is below the Maximum Total Consideration Adjustment or the PropertiesOperating Partnership otherwise elects to proceed with the acquisition of the Property, except for cash distributions then the Operating Partnership may deduct from the Contributor’s Total Consideration an amount representing the reduction in value to the ordinary course Property that the Operating Partnership reasonably determines has resulted or is likely to result from such disclosed item(s).
6.1. 5If the liquor license has not been transferred to the Operating Partnership effective as of business consistent the Closing Date, and to the extent allowable under the State of North Carolina, parties will execute a mutually agreeable temporary liquor management agreement to oversee and control the food and beverage operations of the Property. The Contributor and the Operating Partnership will cooperate with past practicesinformation as reasonably required to facilitate the transfer of the existing liquor permit. The Contributor shall reasonably cooperate with the Operating Partnership in connection with the transfer of the liquor license to the Operating Partnership or its designee on or after the Closing Date. The Operating Partnership shall pay all application fees in connection with the transfer of the liquor license.
6.1. 6From the Effective Date, distributions necessary the Contributor agrees to maintain provide the REIT status of Operating Partnership with all information relating to the franchise at the Property as reasonably requested by the Operating Partnership and to cooperate with the Operating Partnership with respect to entering into or assuming the Franchise Agreement.
6.1. 7Neither the Contributor nor any direct owner, subsidiary or indirect feeder entity affiliate of the Contributor that is a REITshall establish, engage in, or become interested in, directly or indirectly, as permitted by this Agreement.
(c) Prior to an owner, partner, agent, shareholder, employee, independent contractor, consultant, or otherwise, within a radius of 25 miles from the Property in the operation of a hotel for a period 36 months. At the Closing, the Contributor shall cooperate execute the Non-Competition and Non-Solicitation Agreement set forth as Exhibit E (the “Non-Competition Agreement and Non-Solicitation Agreement”).
6.1. 8The Contributor shall enter into the Confidentiality and Non-Disclosure Agreement (the “NDA”), set forth as Exhibit F, with the Operating Partnership and use commercially reasonable efforts to obtain the execution by the General Services Administration (“GSA”) of any required Novation Agreement in a form typical or required for a GSA Lease by and among GSA, the Contributor (or applicable Partnership) and the Operating Partnership for each GSA Lease (a “Novation Agreement”). Promptly after Closing, for each of the GSA Leases and to the extent Novation Agreements were not obtained as of Closing, Contributor shall cooperate with the Operating Partnership to obtain the execution by GSA of any required Novation Agreement.
(d) The provisions of this Section 4.1 shall survive Closing.
Appears in 1 contract
Samples: Contribution Agreement (Lodging Fund REIT III, Inc.)
Covenants of the Contributor. (a) From the date hereof through the Closing, and except in connection with the Formation Transactions, the Contributor shall not, without the prior written consent of the Operating Partnership:
(i) Sell, transfer (or agree to sell or transfer) or otherwise dispose of, or cause the sale, transfer or disposition of (or agree to do any of the foregoing) all or any portion of its interest in the Partnership Interests or Contributed Assets or all or any portion of its interest in the Properties or related Property Interests; or
(ii) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber all or any portion of its Partnership Interests or Contributed Assets.
(b) From the date hereof through the Closing, and except in connection with the Formation Transactions, the Contributor shall, to the extent within its control, conduct the Partnerships’ business in the ordinary course of business consistent with past practice, and shall, to the extent within its control and consistent with its obligations under the Partnerships’ operating agreements, not permit any Partnership, without the prior written consent of the Operating Partnership, to:
(i) Enter into (x) any material transaction not in the ordinary course of business with respect to any the Property, nor (y) enter into any amendment to any lease or similar occupancy agreement or document at any Property; provided that the Operating Partnership’s consent will not be unreasonably withheld or delayed and the Operating Partnership will respond to any request for consent to such New Lease Document or other occupancy agreement within ten (10) business days follow its receipt of written notice of the proposed material terms thereof (with silence being deemed to be the Operating Partnership’s consent);
(ii) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber (other than by Permitted Encumbrances) any assets of such Partnership, except (A) liens for Taxes not delinquent, (B) purchase money security interests in the ordinary course of such Partnership’s business, and (C) mechanics’ liens being disputed by such Partnership in good faith and by appropriate proceeding in the ordinary course of such Partnership’s business;
(iii) Cause or permit any Partnership to change the existing use of any Property;
(iv) Cause or take any action that would render any of the representations or warranties regarding the Properties as set forth in Exhibit C to be untrue in any material respect;
(v) File an entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat any Partnership or any subsidiary entity of a Partnership as an association taxable as a corporation for federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended tax return; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; or
(vi) Make any distribution to its partners or members related to the Partnerships or the Properties, except for cash distributions in the ordinary course of business consistent with past practices, distributions necessary to maintain the REIT status of any direct or indirect feeder entity of the Contributor that is a REIT, practices or as permitted by this Agreement.
(c) Prior to Closing, the Contributor shall cooperate with the Operating Partnership and use commercially reasonable efforts to obtain the execution by the General Services Administration (“GSA”) of any required a Novation Agreement in a form typical or required for a GSA Lease by and among GSA, the Contributor (or applicable Partnership) and the Operating Partnership for each GSA Lease (a “Novation Agreement”). Further, the Contributor shall (i) for each deposit account where GSA delivers rents and other amounts due under the GSA Leases (the “GSA Accounts”), execute and deliver at Closing an irrevocable, present and absolute assignment to the Operating Partnership of all deposits made into the GSA Accounts following the Closing, in form and substance acceptable to the Operating Partnership; (ii) cooperate with the Operating Partnership and use commercially reasonable efforts to cause each bank or financial institution where the GSA Accounts are established (the “GSA Account Banks”) to execute account control agreements, in form and substance acceptable to the Operating Partnership, by and among the Contributor, the applicable Partnership, the Operating Partnership and the applicable GSA Account Bank, pursuant to which the Operating Partnership shall have the exclusive right to make withdrawals from the GSA Accounts and to exercise any and all other rights and powers with respect to such GSA Accounts; and (iii) include in the Pledge Agreement (to be provided at the Closing pursuant to Section 3.3 of Exhibit C) a provision, in form and substance acceptable to the Operating Partnership, pursuant to which the obligations of the Contributor under Section 2.6(b)(vi)(c) as to the delivery of rents shall be secured by a pledge of a number of OP Units having a value at the Closing equal to the aggregate amount of rents to be collected under the GSA Leases for the six (6) month period following the Closing, which amount shall be in addition to the pledge of OP Units pursuant to Section 3.3 of Exhibit C; provided, that a number of OP Units shall be released from such pledge at each time that the Operating Partnership obtains a Novation Agreement for a GSA Lease in an amount equal to the number of OP Units pledged by the Contributor as set forth on Schedule 4.1(c) with respect to the GSA Lease where a Novation Agreement is obtained from the GSA, and in all events shall be released to Contributor on the date which is twelve (12) months from the Closing if Contributor is in full compliance with the terms of Section 2.6(b)(vi) and this Section 4.1.
(d) Promptly after Closing, for each of the GSA Leases and to the extent Novation Agreements were not obtained as of Closing, Contributor shall cooperate with the Operating Partnership to obtain the execution by GSA of any required the Novation AgreementAgreement by and among GSA, the Contributor (or applicable Partnership) and the Operating Partnership for each such GSA Lease.
(de) The provisions of this Section 4.1 shall survive Closing.
Appears in 1 contract
Samples: Contribution Agreement (Easterly Government Properties, Inc.)
Covenants of the Contributor. (a) From
6.1. 1From the date hereof Effective Date through the Closing, and except in connection with the Formation Transactions, the Contributor shall not, without the prior written consent of the Operating Partnership::
(ia) Sell, transfer (or agree to sell or transfer) ), assign or otherwise dispose of, or cause the sale, transfer transfer, assignment or disposition of (or agree to do any of the foregoing) all or any portion of its interest in the Partnership Interests or Contributed Assets or Assumed Agreements or all or any portion of its interest in the Properties or related Property InterestsProperty; or
(iib) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber all or any portion of its Partnership Interests Property or Contributed Assets..
(b) From 6.1. 2From the date hereof Effective Date through the Closing, and except in connection with the Formation Transactions, the Contributor shall, shall conduct its business with respect to the extent within its control, conduct the Partnerships’ business Property in the ordinary course of business consistent with past practicepractices, and shall, shall to the extent within its control and consistent with its obligations under the Partnerships’ operating agreementscontrol, not permit any Partnershipnot, without the prior written consent of the Operating Partnership, to::
(ia) Enter into (x) any material transaction not in the ordinary course of business with respect to any Property, nor (y) enter into any amendment to any lease or similar occupancy agreement or document at any Property; provided that the Operating Partnership’s consent will not be unreasonably withheld or delayed and the Operating Partnership will respond to any request for consent to such New Lease Document or other occupancy agreement within ten (10) business days follow its receipt of written notice of the proposed material terms thereof (with silence being deemed to be the Operating Partnership’s consent);
(iib) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber (other than by Permitted EncumbrancesLiens) the Property or any assets of such Partnershiprelated to the Property or the Contributed Assets, except (Ai) liens for Taxes taxes not delinquent, (B) purchase money security interests in the ordinary course of such Partnership’s business, and (C) mechanics’ liens delinquent or being disputed by such Partnership the Contributor in good faith and by appropriate proceeding in the ordinary course of such Partnershipthe Contributor’s business;, and (ii) mechanics’ liens being disputed by the Contributor in good faith and by appropriate proceeding in the ordinary course of the Contributor’s business;
(iiic) Cause or permit any Partnership a change to change the existing use of any Property;the Property other than as a result of entering into new Leases in compliance with this Agreement;
(ivd) Cause or take any action that would render any of the representations or warranties regarding the Properties Property as set forth in Exhibit C to be this Agreement untrue in any material respect;respect (other than as a result of entering into new Leases in compliance with this Agreement); or
(ve) File an entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat any Partnership or any subsidiary entity of a Partnership as an association taxable as a corporation for federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended tax return; enter Enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; or
(vi) Make any distribution to its partners or members new Leases related to the Partnerships Property. The Operating Partnership shall approve or disapprove in writing any such action by the Contributor within 5 business days after receiving a written request (providing all information reasonably relevant to the Operating Partnership’s consideration) for such approval from the Contributor, which approval shall be in the Operating Partnership’s sole and absolute discretion.
6.1. 3From the Effective Date, the Contributor agrees to provide the Operating Partnership with such tax information relating to the Property as reasonably requested by the Operating Partnership and to cooperate with the Operating Partnership with respect to its filing of tax returns;
6.1. 4From the Effective Date, the Contributor shall promptly provide notice to the Operating Partnership upon any discovery that may lead to the Contributor’s representations and warranties contained in this Agreement being incomplete, inaccurate or in any manner not completely true and correct as of the Closing Date, including without limitation, any matter which if uncured prior to the Closing Date would have such effect, even if the Contributor intends to cure, correct or remedy such matter prior to the Closing and is implementing such cure, correction or remedy. If the disclosed item(s) represents a breach by the Contributor and the Operating Partnership determines in good faith that the disclosed item(s) contained in any such notice represents an impairment in the value of the Property in excess of the Maximum Total Consideration Adjustment, then the Operating Partnership may elect, in its sole discretion, to terminate this Agreement and, if such election is made, shall receive a full return of the Xxxxxxx Money. In the alternative, in the event that such impairment in value is below the Maximum Total Consideration Adjustment or the PropertiesOperating Partnership otherwise elects to proceed with the acquisition of the Property, except for cash distributions then the Operating Partnership may deduct from the Contributor’s Total Consideration an amount representing the reduction in value to the ordinary course Property that the Operating Partnership reasonably determines has resulted or is likely to result from such disclosed item(s).
6.1. 5If the liquor license has not been transferred to the Operating Partnership effective as of business consistent the Closing Date, and to the extent allowable under the State of North Carolina, parties will execute a mutually agreeable temporary liquor management agreement to oversee and control the food and beverage operations of the Property. The Contributor and the Operating Partnership will cooperate with past practicesinformation as reasonably required to facilitate the transfer of the existing liquor permit. The Contributor shall reasonably cooperate with the Operating Partnership in connection with the transfer of the liquor license to the Operating Partnership or its designee on or after the Closing Date. The Operating Partnership shall pay all application fees in connection with the transfer of the liquor license.
6.1. 6From the Effective Date, distributions necessary the Contributor agrees to maintain provide the REIT status of Operating Partnership with all information relating to the franchise at the Property as reasonably requested by the Operating Partnership and to cooperate with the Operating Partnership with respect to entering into or assuming the Franchise Agreement.
6.1. 7Neither the Contributor nor any direct owner, subsidiary or indirect feeder entity affiliate of the Contributor that is a REITshall establish, engage in, or become interested in, directly or indirectly, as permitted by this Agreement.
(c) Prior to an owner, partner, agent, shareholder, employee, independent contractor, consultant, or otherwise, within a radius of 25 miles from the Property in the operation of a hotel for a period 36 months. At the Closing, the Contributor shall cooperate with execute the Operating Partnership Non-Competition and use commercially reasonable efforts to obtain Non-Solicitation Agreement set forth as Exhibit E (the execution by the General Services Administration (“GSA”) of any required Novation Non-Competition Agreement in a form typical or required for a GSA Lease by and among GSA, the Contributor (or applicable Partnership) and the Operating Partnership for each GSA Lease (a “Novation Non-Solicitation Agreement”). Promptly after Closing, for each of the GSA Leases and to the extent Novation Agreements were not obtained as of Closing, Contributor shall cooperate with the Operating Partnership to obtain the execution by GSA of any required Novation Agreement.
(d) The provisions of this Section 4.1 shall survive Closing.
Appears in 1 contract
Samples: Contribution Agreement (Lodging Fund REIT III, Inc.)
Covenants of the Contributor. (a) From 6.1. 1From the date hereof Effective Date through the Closing, and except in connection with the Formation Transactions, the Contributor shall not, without the prior written consent of the Operating Partnership:
(ia) Sell, transfer (or agree to sell or transfer) ), assign or otherwise dispose of, or cause the sale, transfer transfer, assignment or disposition of (or agree to do any of the foregoing) all or any portion of its interest in the Partnership Interests or Contributed Assets or all or any portion of its interest in the Properties or related Property Intereststhe; or
(iib) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber all or any portion of its Partnership Interests Property or Contributed Assets.
(b) From 6.1. 2From the date hereof Effective Date through the Closing, and except in connection with the Formation Transactions, the Contributor shall, shall conduct its business with respect to the extent within its control, conduct the Partnerships’ business Property in the ordinary course of business consistent with past practicepractices, and shall, shall to the extent within its control and consistent with its obligations under the Partnerships’ operating agreementscontrol, not permit any Partnershipnot, without the prior written consent of the Operating Partnership, to:
(ia) Enter into (x) any material transaction not in the ordinary course of business with respect to any Property, nor (y) enter into any amendment to any lease or similar occupancy agreement or document at any Property; provided that the Operating Partnership’s consent will not be unreasonably withheld or delayed and the Operating Partnership will respond to any request for consent to such New Lease Document or other occupancy agreement within ten (10) business days follow its receipt of written notice of the proposed material terms thereof (with silence being deemed to be the Operating Partnership’s consent);
(iib) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber (other than by Permitted EncumbrancesLiens) the Property or any assets of such Partnershiprelated to the Property or the Contributed Assets, except (Ai) liens for Taxes taxes not delinquent, (B) purchase money security interests in the ordinary course of such Partnership’s business, and (C) mechanics’ liens delinquent or being disputed by such Partnership the Contributor in good faith and by appropriate proceeding in the ordinary course of such Partnershipthe Contributor’s business, and (ii) mechanics’ liens being disputed by the Contributor in good faith and by appropriate proceeding in the ordinary course of the Contributor’s business;
(iiic) Cause or permit any Partnership a change to change the existing use of any Propertythe Property other than as a result of entering into new Leases in compliance with this Agreement;
(ivd) Cause or take any action that would render any of the representations or warranties regarding the Properties Property as set forth in Exhibit C to be this Agreement untrue in any material respect;
respect (v) File an entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat any Partnership or any subsidiary entity of a Partnership as an association taxable other than as a corporation for federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment result of entering into new Leases in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended tax return; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessmentcompliance with this Agreement); or
(vie) Make Enter into any distribution to its partners or members new Leases related to the Partnerships Property. The Operating Partnership shall approve or disapprove in writing any such action by the PropertiesContributor within 5 business days after receiving a written request (providing all information reasonably relevant to the Operating Partnership’s consideration) for such approval from the Contributor, except for cash distributions which approval shall be in the ordinary course of business consistent with past practices, distributions necessary to maintain the REIT status of any direct or indirect feeder entity of the Contributor that is a REIT, or as permitted by this AgreementOperating Partnership’s sole and absolute discretion.
(c) Prior to Closing6.1. 3From the Effective Date, the Contributor shall agrees to provide the Operating Partnership with such tax information relating to the Property as reasonably requested by the Operating Partnership and to cooperate with the Operating Partnership and use commercially reasonable efforts with respect to obtain its filing of tax returns;
6.1. 4From the execution by the General Services Administration (“GSA”) of any required Novation Agreement in a form typical or required for a GSA Lease by and among GSAEffective Date, the Contributor (shall promptly provide notice to the Operating Partnership upon any discovery that may lead to the Contributor’s representations and warranties contained in this Agreement being incomplete, inaccurate or applicable Partnershipin any manner not completely true and correct as of the Closing Date, including without limitation, any matter which if uncured prior to the Closing Date would have such effect, even if the Contributor intends to cure, correct or remedy such matter prior to the Closing and is implementing such cure, correction or remedy. If the disclosed item(s) represents a breach by the Contributor and the Operating Partnership for each GSA Lease determines in good faith that the disclosed item(s) contained in any such notice represents an impairment in the value of the Property in excess of the Maximum Total Consideration Adjustment, then the Operating Partnership may elect, in its sole discretion, to terminate this Agreement and, if such election is made, shall receive a full return of the Xxxxxxx Money. In the alternative, in the event that such impairment in value is below the Maximum Total Consideration Adjustment or the Operating Partnership otherwise elects to proceed with the acquisition of the Property, then the Operating Partnership may deduct from the Contributor’s Total Consideration an amount representing the reduction in value to the Property that the Operating Partnership reasonably determines has resulted or is likely to result from such disclosed item(s).
6.1. 5Alcoholic beverage service is permitted at the Property pursuant to a duly issued liquor license (a “Novation AgreementLiquor License”), which license is held by the management company. Promptly after ClosingUnless management company is retained by the Operating Partnership, the Operating Partnership will apply for each a temporary permit to be issued for it to continue selling alcohol beverages as permitted under the permanent license during the period in which an application to transfer the ownership of the GSA Leases license is pending. The Contributor and the Operating Partnership will cooperate (and Contributor shall cause management company to cooperate) with information as reasonably required to facilitate the transfer of the existing liquor license and the Operating Partnership will apply for a temporary license to operate the alcoholic beverage service currently permitted at the Property when it applies for transfer of that license. The Contributor shall reasonably cooperate at no out of pocket cost or expense to Contributor with the Operating Partnership in connection with the transfer of the Liquor License from the management company to the Operating Partnership or its designee on or after the Closing Date. The Operating Partnership shall pay all application fees in connection with the transfer of the Liquor License. The Operating Partnership may be required to apply for a new license rather than transfer of the existing Liquor License.
6.1. 6From the Effective Date, the Contributor agrees to provide the Operating Partnership with all information relating to the franchise at the Property as reasonably requested by the Operating Partnership and to the extent Novation Agreements were not obtained as of Closing, Contributor shall cooperate with the Operating Partnership with respect to obtain entering into a new Franchise Agreement or assuming the execution by GSA of any required Novation existing Franchise Agreement.
(d) The provisions of this Section 4.1 shall survive Closing.
Appears in 1 contract
Samples: Contribution Agreement (Lodging Fund REIT III, Inc.)
Covenants of the Contributor. (a) From
6.1. 1From the date hereof Effective Date through the Closing, and except in connection with the Formation Transactions, Closing the Contributor shall not, without the prior written consent of the Operating Partnership::
(ia) Sell, transfer (or agree to sell or transfer) ), assign or otherwise dispose of, or cause the sale, transfer transfer, assignment or disposition of (or agree to do any of the foregoing) all or any portion of its interest in the Partnership Interests or Contributed Assets or Assumed Agreements or all or any portion of its interest in the Properties or related Property InterestsProperty; or
(iib) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber (except for the Permitted Liens) all or any portion of its Partnership Interests Property or Contributed Assets..
(b) From 6.1. 2From the date hereof Effective Date through the Closing, and except in connection with the Formation Transactions, the Contributor shall, shall conduct its business with respect to the extent within its control, conduct the Partnerships’ business Property in the ordinary course of business consistent with past practicepractices, and shall, shall to the extent within its control and consistent with its obligations under the Partnerships’ operating agreementscontrol, not permit any Partnershipnot, without the prior written consent of the Operating Partnership, to::
(ia) Enter into (x) any material transaction not in the ordinary course of business with respect to any Property, nor (y) enter into any amendment to any lease or similar occupancy agreement or document at any Property; provided that the Operating Partnership’s consent will not be unreasonably withheld or delayed and the Operating Partnership will respond to any request for consent to such New Lease Document or other occupancy agreement within ten (10) business days follow its receipt of written notice of the proposed material terms thereof (with silence being deemed to be the Operating Partnership’s consent);
(iib) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber (other than by Permitted EncumbrancesLiens) the Property or any assets of such Partnershiprelated to the Property or the Contributed Assets, except (Ai) liens for Taxes taxes not delinquent, (B) purchase money security interests in the ordinary course of such Partnership’s business, and (C) mechanics’ liens delinquent or being disputed by such Partnership the Contributor in good faith and by appropriate proceeding in the ordinary course of such Partnershipthe Contributor’s business;, and (ii) mechanics’ liens being disputed by the Contributor in good faith and by appropriate proceeding in the ordinary course of the Contributor’s business;
(iiic) Cause or permit any Partnership a change to change the existing use of any Property;the Property other than as a result of entering into new Leases in compliance with this Agreement;
(ivd) Cause or take any action that would render any of the representations or warranties regarding the Properties Property as set forth in Exhibit C to be this Agreement untrue in any material respect;respect (other than as a result of entering into new Leases in compliance with this Agreement or taking any other action that is permitted or required by this Agreement); or
(ve) File an entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat any Partnership or any subsidiary entity of a Partnership as an association taxable as a corporation for federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended tax return; enter Enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; or
(vi) Make any distribution to its partners or members new Leases related to the Partnerships or the Properties, except for cash distributions Property other than in the ordinary course of business consistent with past practices, distributions necessary to maintain the REIT status of business. The Operating Partnership shall approve or disapprove in writing any direct or indirect feeder entity of such action by the Contributor that is within 5 business days after receiving a REITwritten request (providing all information reasonably relevant to the Operating Partnership’s consideration) for such approval from the Contributor, or as permitted by this Agreementwhich approval shall be in the Operating Partnership’s sole and absolute discretion.
(c) Prior 6.1. 3From the Effective Date through the Closing, the Contributor agrees to provide the Operating Partnership with such tax information relating to the Property as reasonably requested by the Operating Partnership and to cooperate with the Operating Partnership with respect to its filing of tax returns;
6.1. 4From the Effective Date through the Closing, the Contributor shall promptly provide notice to the Operating Partnership upon any discovery that may lead to the Contributor’s representations and warranties contained in this Agreement being incomplete, inaccurate or in any manner not completely true and correct as of the Closing Date, including without limitation, any matter which if uncured prior to the Closing Date would have such effect, even if the Contributor intends to cure, correct or remedy such matter prior to the Closing and is implementing such cure, correction or remedy. If the disclosed item(s) represents a breach by the Contributor and the Operating Partnership determines in good faith that the disclosed item(s) contained in any such notice represents an impairment in the value of the Property in excess of the Maximum Per Property Total Consideration Adjustment, then the Operating Partnership may elect, in its sole discretion, to terminate this Agreement and, if such election is made, shall receive a full return of the Xxxxxxx Money. In the alternative, in the event that such impairment in value is below the Maximum Per Property Total Consideration Adjustment or the Operating Partnership otherwise elects to proceed with the acquisition of the Property, then the Operating Partnership may deduct from the Contributor’s Total Consideration an amount representing the reduction in value to the Property that the Operating Partnership reasonably determines has resulted or is likely to result from such disclosed item(s).
6.1. 5If the liquor license has not been transferred to the Operating Partnership effective as of the Closing Date, and to the extent allowable under the State of Kansas, parties will execute a mutually agreeable temporary liquor management agreement to oversee and control the food and beverage operations of the Property. The Contributor and the Operating Partnership will cooperate with information as reasonably required to facilitate the transfer of the existing liquor permit. The Contributor shall reasonably cooperate with the Operating Partnership and use commercially reasonable efforts in connection with the transfer of the liquor license to obtain the execution by Operating Partnership or its designee on or after the General Services Administration (“GSA”) Closing Date. The Operating Partnership shall pay all application fees in connection with the transfer of any required Novation Agreement in a form typical or required for a GSA Lease by and among GSAthe liquor license.
6.1. 6From the Effective Date through the Closing, the Contributor (or applicable Partnership) and agrees to provide the Operating Partnership for each GSA Lease (a “Novation Agreement”). Promptly after Closing, for each of with all information relating to the GSA Leases franchise at the Property as reasonably requested by the Operating Partnership and to the extent Novation Agreements were not obtained as of Closing, Contributor shall cooperate with the Operating Partnership with respect to obtain entering into or assuming the execution by GSA Franchise Agreement.
6.1. 7Neither the Contributor nor any owner, subsidiary or affiliate of any required Novation the Contributor shall establish, engage in, or become interested in, directly or indirectly, as an owner, partner, agent, shareholder, employee, independent contractor, consultant, or otherwise, within a radius of 25 miles from the Property in the operation of a hotel for a period 36 months. At the Closing, the Contributor shall execute the Non-Competition and Non-Solicitation Agreement set forth as Exhibit E (the “Non-Competition Agreement and Non-Solicitation Agreement.
(d) The provisions of this Section 4.1 shall survive Closing.”).
Appears in 1 contract
Samples: Contribution Agreement (Lodging Fund REIT III, Inc.)
Covenants of the Contributor. (a) From the date hereof through the Closing, and except in connection with the Formation Transactions, the Contributor shall not, and Glenborough GP shall cause the Contributor not to, without the prior written consent of the Operating Partnership:
(i) Sell, transfer (or agree to sell or transfer) or otherwise dispose of, or cause the sale, transfer or disposition of (or agree to do any of the foregoing) all or any portion of its interest in the Partnership Interests or Contributed Assets or all or any portion of its interest in the Properties or the related Property Interests; or
(ii) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber all or any portion of its Partnership Interests or Contributed Assets.
(b) From the date hereof through the Closing, and except in connection with the Formation Transactions, the Contributor shall, and Glenborough GP shall cause the Contributor, to the extent within its control, conduct the Partnerships’ business in the ordinary course of business consistent with past practice, and shall, to the extent within its control and consistent with its obligations under the Partnerships’ operating agreements, not permit any Partnership, without the prior written consent of the Operating Partnership, to:
(i) Enter into (x) any material transaction not in the ordinary course of business with respect to any Property, the Property nor (y) enter into subject to Section 4.4 below, any amendment to any lease New Lease Document or similar other occupancy agreement or document at any Propertythat includes terms that are materially more beneficial to the tenant than those set forth on Exhibit I; provided provided, that the Operating Partnership’s consent to any New Lease Document or other occupancy agreement will not be unreasonably withheld conditioned or delayed withheld, and the Operating Partnership will respond to any request for consent to such New Lease Document or other occupancy agreement within ten two (102) business days follow its receipt of written notice of the proposed material terms thereof (with silence being deemed to be the Operating Partnership’s consent);
(ii) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber (other than by Permitted Encumbrances) any assets of such Partnership, except except
(A) liens for Taxes taxes not delinquent, (B) purchase money security interests in the ordinary course of such Partnership’s business, and (C) mechanics’ liens being disputed by such Partnership in good faith and by appropriate proceeding in the ordinary course of such Partnership’s business;
(iii) Cause or permit any Partnership to change the existing use of any Property;
(iv) Cause or take any action that would render any of the representations or warranties regarding the Properties as set forth in on Exhibit C to be untrue in any material respect;
(v) File an entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat any Partnership or any subsidiary entity of a Partnership as an association taxable as a corporation for federal income tax purposes; make or change any other Tax tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxestaxes; change any annual Tax tax accounting period; adopt or change any method of Tax tax accounting; file any amended tax return; enter into any Tax tax allocation agreement, Tax tax sharing agreement, Tax tax indemnity agreement or closing agreement relating to any Taxtax; surrender of any right to claim a Tax tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax tax claim or assessment; or
(vi) Make any distribution to its partners or members related to the Partnerships or the Properties, except for cash distributions in the ordinary course of business consistent with past practices, distributions necessary to maintain the REIT status of any direct or indirect feeder entity of the Contributor that is a REIT, practices or as permitted by this Agreement.
(c) Prior to Closing; provided, however, that the Contributor shall cooperate with give twenty (20) days advance notice to the Operating Partnership thereof, and use commercially reasonable efforts to obtain the execution by the General Services Administration (“GSA”) of any required Novation Agreement in a form typical or required for a GSA Lease by and among GSA, the Contributor (or applicable Partnership) and such distribution shall require the Operating Partnership for each GSA Lease Partnership’s consent (a “Novation Agreement”which shall not be unreasonably withheld). Promptly after Closing, for each of the GSA Leases and to the extent Novation Agreements were not obtained as of Closing, Contributor shall cooperate with the Operating Partnership to obtain the execution by GSA of any required Novation Agreement.
(d) The provisions of this Section 4.1 shall survive Closing.
Appears in 1 contract
Samples: Contribution Agreement (Hudson Pacific Properties, Inc.)
Covenants of the Contributor. (a) From 6.1. 1From the date hereof Effective Date through the Closing, and except in connection with the Formation Transactions, the Contributor shall not, without the prior written consent of the Operating Partnership:
(ia) Sell, transfer (or agree to sell or transfer) ), assign or otherwise dispose of, or cause the sale, transfer transfer, assignment or disposition of (or agree to do any of the foregoing) all or any portion of its interest in the Partnership Interests or Contributed Assets or Assumed Agreements or all or any portion of its interest in the Properties or related Property InterestsProperty; or
(iib) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber all or any portion of its Partnership Interests Property or Contributed Assets. For avoidance of doubt, the transfer and acquisition of the stock, membership of rights of Contributor by PHMI prior to Closing pursuant to the provisions and requirements of Section 3.1.14 hereof shall not be deemed a violation or breach of this Section 6.1.
(b) From 6.1. 2From the date hereof Effective Date through the Closing, and except in connection with the Formation Transactions, the Contributor shall, shall conduct its business with respect to the extent within its control, conduct the Partnerships’ business Property in the ordinary course of business consistent with past practicepractices, and shall, shall to the extent within its control and consistent with its obligations under the Partnerships’ operating agreementscontrol, not permit any Partnershipnot, without the prior written consent of the Operating Partnership, to:
(ia) Enter into (x) any material transaction not in the ordinary course of business with respect to any Property, nor (y) enter into any amendment to any lease or similar occupancy agreement or document at any Property; provided that the Operating Partnership’s consent will not be unreasonably withheld or delayed and the Operating Partnership will respond to any request for consent to such New Lease Document or other occupancy agreement within ten (10) business days follow its receipt of written notice of the proposed material terms thereof (with silence being deemed to be the Operating Partnership’s consent);
(iib) Except as otherwise disclosed in the Disclosure Schedule, mortgage, pledge or encumber (other than by Permitted EncumbrancesLiens) the Property or any assets of such Partnershiprelated to the Property or the Contributed Assets, except (Ai) liens for Taxes taxes not delinquent, (B) purchase money security interests in the ordinary course of such Partnership’s business, and (C) mechanics’ liens delinquent or being disputed by such Partnership the Contributor in good faith and by appropriate proceeding in the ordinary course of such Partnershipthe Contributor’s business;, and (ii) mechanics’ liens being disputed by the Contributor in good faith and by appropriate proceeding in the ordinary course of the Contributor’s business;
(iiic) Cause or permit any Partnership a change to change the existing use of any Propertythe Property other than as a result of entering into new Leases in compliance with this Agreement;
(ivd) Cause or take any action that would render any of the representations or warranties regarding the Properties Property as set forth in Exhibit C to be this Agreement untrue in any material respect;
respect (v) File an entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat any Partnership or any subsidiary entity of a Partnership as an association taxable other than as a corporation for federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment result of entering into new Leases in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended tax return; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessmentcompliance with this Agreement); or
(vie) Make Enter into any distribution to its partners or members new Leases related to the Partnerships Property. The Operating Partnership shall approve or disapprove in writing any such action by the PropertiesContributor within 5 business days after receiving a written request (providing all information reasonably relevant to the Operating Partnership’s consideration) for such approval from the Contributor, except for cash distributions which approval shall be in the ordinary course of business consistent with past practices, distributions necessary to maintain the REIT status of any direct or indirect feeder entity of the Contributor that is a REIT, or as permitted by this AgreementOperating Partnership’s sole and absolute discretion.
(c) Prior to Closing6.1. 3From the Effective Date, the Contributor shall agrees to provide the Operating Partnership with such tax information relating to the Property as reasonably requested by the Operating Partnership and to cooperate with the Operating Partnership and use commercially reasonable efforts with respect to obtain its filing of tax returns;
6.1. 4From the execution by the General Services Administration (“GSA”) of any required Novation Agreement in a form typical or required for a GSA Lease by and among GSAEffective Date, the Contributor (shall promptly provide notice to the Operating Partnership upon any discovery that may lead to the Contributor’s representations and warranties contained in this Agreement being incomplete, inaccurate or applicable Partnershipin any manner not completely true and correct as of the Closing Date, including without limitation, any matter which if uncured prior to the Closing Date would have such effect, even if the Contributor intends to cure, correct or remedy such matter prior to the Closing and is implementing such cure, correction or remedy. If the disclosed item(s) represents a breach by the Contributor and the Operating Partnership for each GSA Lease (a “Novation Agreement”). Promptly after Closing, for each determines in good faith that the disclosed item(s) contained in any such notice represents an impairment in the value of the GSA Leases Property in excess of the Maximum Per Property Total Consideration Adjustment, then the Operating Partnership may elect, in its sole discretion, to terminate this Agreement and, if such election is made, shall receive a full return of the Xxxxxxx Money. In the alternative, in the event that such impairment in value is below the Maximum Per Property Total Consideration Adjustment or the Operating Partnership otherwise elects to proceed with the acquisition of the Property, then the Operating Partnership may deduct from the Contributor’s Total Consideration an amount representing the reduction in value to the Property that the Operating Partnership reasonably determines has resulted or is likely to result from such disclosed item(s).
6.1. 5If the liquor license has not been transferred to the Operating Partnership effective as of the Closing Date, and to the extent Novation Agreements were not obtained allowable under the State of Texas, parties will execute a mutually agreeable temporary liquor management agreement to oversee and control the food and beverage operations of the Property. The Contributor and the Operating Partnership will cooperate with information as reasonably required to facilitate the transfer of Closing, the existing liquor permit. The Contributor shall reasonably cooperate with the Operating Partnership in connection with the transfer of the liquor license to obtain the execution by GSA Operating Partnership or its designee on or after the Closing Date. The Operating Partnership shall pay all application fees in connection with the transfer of any required Novation Agreementthe liquor license.
(d) The provisions of this Section 4.1 shall survive Closing.
Appears in 1 contract
Samples: Contribution Agreement (Lodging Fund REIT III, Inc.)
