Common use of Pre-Closing Distributions Clause in Contracts

Pre-Closing Distributions. On or prior to the Closing Date, each Existing Entity may assign and transfer all of its right, title and interest in and to its cash and other current assets in excess of its liabilities (excluding amounts on deposit with lenders for escrow accounts, prepaid rent, prepaid management fees or other prepaid income streams, prepaid expense reimbursements, accrued employee benefits, future lease obligations, security deposits and amounts otherwise reserved) to the Contributing Members (and/or any other Person (as hereinafter defined) designated by a Contributing Member) in the ordinary course of business consistent with past practice and in accordance with the provisions of the applicable organizational document of each such applicable Existing Entity (such assets being referred to as the “Excluded Assets”); provided, however, that other than the distributions by the Existing Entities contemplated by the Consolidation Transactions, the Existing Entities have not since December 31, 2010 taken, and shall not take, any action not in the ordinary course of business consistent with past practice to increase current assets or reduce current liabilities, including by increasing long-term liabilities, decreasing long-term assets, changing reserves or otherwise. The OP agrees and acknowledges that none of the Excluded Assets, nor any right, title or interest of the Existing Entities or the Contributing Members therein, shall be deemed to constitute a part of any Existing Entity’s assets and liabilities, and that such assets and liabilities will not be owned or retained by any Existing Entity at the Closing Date. The OP agrees and acknowledges that the Existing Entities may transfer or distribute the Excluded Assets at any time and from time to time prior to the Closing Date in the ordinary course of business consistent with past practice, and no such transfer or distribution shall be deemed to violate or breach any provision under this Agreement or any other documents contemplated hereby.

Pre-Closing Distributions. On or prior to the Closing Date, each Existing Entity may PLE shall assign and transfer all of its right, title and interest in and to its cash and other current assets in excess of its and liabilities (excluding amounts on deposit with lenders for escrow accounts, prepaid rent, prepaid management fees or other prepaid income streams, prepaid expense reimbursements, accrued employee benefits, benefits and future lease obligations, security deposits and amounts otherwise reserved) to the Contributing Members Contributors (and/or any other Person (as hereinafter defined) designated by a Contributing MemberContributor) in the ordinary course of business consistent with past practice and in accordance with the provisions of the applicable organizational document of each such applicable Existing Entity their respective Applicable Percentage (such assets and liabilities being referred to as the “"Excluded Assets”Assets and Liabilities"); provided, provided however, that other than the distributions by the Existing Entities Institutional Funds and the mergers and contributions contemplated by the Consolidation TransactionsFormation Transaction Documentation, the Existing Entities have PLE has not since December 31July 1, 2010 2005 taken, and shall not take, any action not in the ordinary course of business consistent with past practice to increase current assets or reduce current liabilities, including by increasing long-term liabilities, decreasing long-term assets, changing reserves or otherwise. The OP Operating Partnership agrees and acknowledges that none of the Excluded AssetsAssets and Liabilities, nor any right, title or interest of the Existing Entities PLE or the Contributing Members Contributors therein, shall be deemed to constitute a part of any Existing Entity’s PLE or its assets and liabilities, and that such assets and liabilities will not be owned or retained by any Existing Entity PLE at the Closing. Notwithstanding the foregoing, PLE may elect not to assign or transfer certain of their current liabilities prior to the Closing DateDate (such liabilities to the extent not covered by insurance or indemnification from the DERA Funds, being referred to as the "Included Current Liabilities"), provided that PLE retains, and the Operating Partnership permits PLE to own and retain at the Closing, cash in the amount of the Included Current Liabilities. The OP Operating Partnership agrees and acknowledges that the Existing Entities PLE may transfer or distribute the Excluded Assets and Liabilities at any time and from time to time prior to the Closing Date in the ordinary course of business consistent with past practiceClosing, and no such transfer or distribution shall be deemed to violate or breach any provision under this Agreement or any other documents contemplated hereby.. ARTICLE II

Pre-Closing Distributions. On or prior to the Closing Date, each Existing Entity may of the Management Companies shall assign and transfer all of its right, title and interest in and to its cash (excluding the Excess DERA Contribution) and other current assets in excess of its and liabilities (including any pre-Closing distributions receivable by that Management Company with respect to any interest in the DERA Funds as provided for in the Formation Transaction Documentation but excluding amounts on deposit with lenders for escrow accounts, prepaid rent, prepaid management fees or other prepaid income streams, prepaid expense reimbursements, accrued employee benefits, benefits and future lease obligations, security deposits and amounts otherwise reserved) to the Contributing Members Management Company Shareholders (and/or any other Person (as hereinafter defined) designated by a Contributing MemberManagement Company Shareholder) in the ordinary course of business consistent with past practice and in accordance with the provisions of the applicable organizational document of each such applicable Existing Entity their respective Applicable Percentage (such assets and liabilities being referred to as the “"Excluded Assets”Assets and Liabilities"); provided, provided however, that other than the distributions by the Existing Entities Institutional Funds and the mergers and contributions contemplated by the Consolidation TransactionsFormation Transaction Documentation, the Existing Entities Management Companies have not since December 31July 1, 2010 2005 taken, and shall not take, any action not in the ordinary course of business consistent with past practice to increase current assets or reduce current liabilities, including by increasing long-term liabilities, decreasing long-term assets, changing reserves or otherwise. The OP REIT agrees and acknowledges that none of the Excluded AssetsAssets and Liabilities, nor any right, title or interest of the Existing Entities Management Companies or the Contributing Members Management Company Shareholders therein, shall be deemed to constitute a part of any Existing Entity’s the Management Companies or their respective assets and liabilities, and that such assets and liabilities will not be owned or retained by any Existing Entity the Management Companies at the Closing. Notwithstanding the foregoing, the Management Companies may elect not to assign or transfer certain of their current liabilities prior to the Closing DateDate (such liabilities, to the extent not covered by insurance or indemnification from the DERA Funds, being referred to as the "Included Current Liabilities"), provided that the Management Companies retain, and the REIT permits the Management Companies to own and retain at the Closing, cash in the amount of the Included Current Liabilities in addition to the amount of the Excess DERA Contribution. The OP REIT agrees and acknowledges that the Existing Entities Management Companies may transfer or distribute the Excluded Assets and Liabilities at any time and from time to time prior to the Closing Date in the ordinary course of business consistent with past practiceClosing, and no such transfer or distribution shall be deemed to violate or breach any provision under this Agreement or any other documents contemplated hereby.

Pre-Closing Distributions. On or prior to the Closing Date, each the Existing Entity Entities and the DLC Existing Entities may assign and transfer all of its their right, title and interest in and to its cash and other current assets in excess of its liabilities (excluding amounts on deposit with lenders for escrow accounts, prepaid rent, prepaid management fees or other prepaid income streams, prepaid expense reimbursements, accrued employee benefits, future lease obligations, security deposits and amounts otherwise reserved) to the Contributing Exchanging Members (and/or any other Person (as hereinafter defined) designated by a Contributing Exchanging Member) in the ordinary course of business consistent with past practice and in accordance with the provisions of the applicable organizational document of each such applicable Existing Entity or DLC Existing Entity, as applicable (such assets being referred to as the “Excluded Assets”); provided, however, that other than the distributions by the Existing Entities and the DLC Existing Entities and the mergers contemplated by the Consolidation Transactions, the Existing Entities and the DLC Existing Entities have not since December 31, 2010 2009 taken, and shall not take, any action not in the ordinary course of business consistent with past practice to increase current assets or reduce current liabilities, including by increasing long-term liabilities, decreasing long-term assets, changing reserves or otherwise. The DLC OP agrees and acknowledges that none of the Excluded Assets, nor any right, title or interest of the Existing Entities and the DLC Existing Entities or the Contributing Exchanging Members therein, shall be deemed to constitute a part of any the Existing Entity’s Entities and the DLC Existing Entities or its assets and liabilities, and that such assets and liabilities will not be owned or retained by any the Existing Entity Entities and the DLC Existing Entities at the Closing Date. The DLC OP agrees and acknowledges that the Existing Entities and the DLC Existing Entities may transfer or distribute the Excluded Assets at any time and from time to time prior to the Closing Date in the ordinary course of business consistent with past practiceDate, and no such transfer or distribution shall be deemed to violate or breach any provision under this Agreement or any other documents contemplated hereby.