Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, as the case may require, as of the Effective Time: A. real estate and personal property taxes and assessments; B. the rent payable by tenants under the Commercial Leases; provided that rent and all other sums which are due and payable to MLP by any tenant but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 shall promptly remit to MLP any such rent or other sums paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Lease; C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants; D. water, electric, telephone and all other utility charges with respect to the Properties, and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time); E. amounts due and prepayments under the Other Contracts or Equipment Leases; F. assignable license and permit fees; G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created; H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be final.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Merry Land Properties Inc), Purchase and Sale Agreement (Cornerstone Realty Income Trust Inc)
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, adjusted (as the case may require, appropriate) as of 11:59 p.m. on the Effective Timeday before the Closing Date and reprorated (if necessary) pursuant to Section 4(C)(ii) below, it being understood that for purposes of prorations and adjustments, Seller shall be deemed the owner of the Property on the day before the Closing Date, and Purchaser shall be deemed the owner of the Property on the Closing Date:
A. (a) real estate and personal property taxes based on the fiscal year used by the taxing authority and assessmentsassessments for improvements commenced after the date of this Agreement (on the basis of the most recent ascertainable tax or assessment xxxx if the current xxxx is not then available), with Seller obligated to pay all assessments relating to improvements in progress or completed as of the date of this Agreement;
B. (b) the "minimum" or "base" rent payable by tenants under the Commercial Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Seller by any tenant but uncollected as of the Effective Time Closing shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing to be remitted to MLP Seller if, as and when collected. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule schedule, certified to be complete and accurate by Purchaser and Seller (prepared by MLP as of the most recent date available) to their knowledge), of all such past due but uncollected rent and other sums owed by tenantstenants (including without limitation those described in paragraphs (c) and (d) below). MRY3 Purchaser shall include the amount of such rent and other sums in the first bills thereafter submitted to the tenants in question after the Closing, and shall continue to do so for twelve (12) months thereafter. In connection with the allocation of such uncollected rent and other sums, the parties shall disregard any purported or attempted designation by tenants of the months or periods to which their payments should be applied. Purchaser shall not be obligated to start a law suit to collect any such sums or to evict any tenant for the failure to pay any such sums but Seller shall retain the right to do so after the Closing provided Purchaser may not seek to terminate any Lease or evict any tenant. However, Purchaser shall promptly remit to MLP Seller any such rent or other sums paid by scheduled tenants, notwithstanding that a but only if there is no deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Leaseand such other sums;
C. the full amount of security deposits paid under the Commercial Leases, (c) to the extent unappliednot set forth on the schedule of uncollected rent described in Section 4(C)(i)(b) above, together "percentage" or "overage" rent that is (1) attributable to any Percentage Rent lease year in which the Closing Date falls and (2) not yet due or payable (not including estimated payments) as of the Closing Date (collectively, "Current Year Percentage Rent"), shall be prorated as follows: promptly upon receipt by Purchaser, Purchaser shall furnish to Seller copies of all sales reports from tenants relative to Current Year Percentage Rent, including, without limitation, all sales reports with interest thereon if required by law or otherwise; provided that respect to any tenants whose Percentage Rent lease years have expired as of the Closing but whose sales reports were not delivered to Seller as of the Closing Date and sales reports of any tenants whose Percentage Rent lease years expire after the Closing, and the amount of any Current Year Percentage Rent shall be payable in accordance with such tenant's Lease as existing as of the Closing Date, and Purchaser shall (to the extent permitted not paid to Seller by applicable lawway of estimated payments prior to Closing) MLP shall have pay to Seller a pro rata portion of such rent based upon the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. water, electric, telephone and all other utility charges with respect to the Properties, and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits apportionment being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time);
E. amounts due and prepayments under the Other Contracts or Equipment Leases;
F. assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected made as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior Closing Date (in proportion to the Effective Time relative number of days in the subject year occurring prior and subsequent to be remitted the Closing Date), promptly after the date when such rent is received from the tenant. The schedule referred to MLP if, as and when collected. On in Section 4(C)(i)(b) above shall include an itemized breakdown of the Effective Time, MLP shall deliver to MRY3 a schedule (prepared total estimated payments made by MLP each tenant as of the most recent date available) Closing Date on account of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby createdCurrent Year Percentage Rent;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be final.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Pennsylvania Real Estate Investment Trust), Purchase and Sale Agreement (Pennsylvania Real Estate Investment Trust)
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to the Effective TimeDistribution Date) and a proposed statement of prorations, prorations and other adjustments shall be prepared by MRY3 Merry Land Properties in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective TimeDistribution Date. For purposes of prorations, each Assignment the Transfer shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective TimeDistribution Date. The following items are to be prorated or adjusted, as the case may require, as of the Effective TimeDistribution Date:
A. real estate and personal property taxes and assessmentsassessments (prorated on the basis of the amount of real estate tax liabilities for the Transferred Properties that is reflected on Merry Land's balance sheet as of the Distribution Date);
B. the rent payable by tenants under the Commercial Tenant Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Merry Land by any tenant but uncollected as of the Effective Time Distribution Date shall not be adjusted, but MRY3 Merry Land Properties shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums for the period prior to the Effective Time Distribution Date to be remitted to MLP Merry Land if, as and when collected. On the Effective TimeDistribution Date, MLP Merry Land shall deliver to MRY3 Merry Land Properties a schedule (prepared by MLP Merry Land as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 Merry Land Properties shall promptly remit to MLP Merry Land any such rent or other sums paid by scheduled tenants, notwithstanding that but only if a deficiency in the then current rent is not thereby created. MRY3 Merry Land Properties shall xxxx tenants who owe rent for periods prior to the Effective Time Distribution Date on a monthly basis for six consecutive months following the Effective TimeDistribution Date. For amounts due MLP Merry Land not collected within thirty (30) days after the Effective TimeDistribution Date, MLP Merry Land shall have the right to xxx to collect samesame (and Merry Land shall have the right to continue any eviction action in process as of said Distribution Date), but in no event may MLP Merry Land seek to evict any tenant or terminate any Commercial Tenant Lease.;
C. the full amount of security deposits paid under the Commercial Tenant Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP Merry Land shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. water, electric, telephone and all other utility charges with respect to the Propertiescharges, and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLPMerry Land) (to the extent possible, utility prorations will be handled by meter readings on the Effective TimeDistribution Date);
E. amounts due and prepayments under the Other Contracts or Equipment Leases;
F. assignable license and permit fees;
G. amounts receivable payable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP Merry Land shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP Merry Land prior to the Effective Time Distribution Date with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time Distribution Date to MLP Merry Land or MRY3Merry Land Properties, as the case may be, by the other party. Any proration (other than general real estate and personal property taxes) which must be estimated on the Effective Time Distribution Date shall be re-prorated and finally adjusted as soon as practicable after the Effective TimeDistribution Date; otherwise, all prorations shall be final.
Appears in 1 contract
Samples: Asset Exchange Agreement (Merry Land Properties Inc)
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, prorations and other adjustments shall be prepared by MRY3 Purchaser in conformity with the provisions of this Agreement and submitted to the applicable Seller for each Individual Property for review not less than three (3) business days prior to the Effective TimeClosing Date. For purposes of prorations, each Assignment Purchaser shall be deemed to have occurred as the owner of 12:01 a.m. the applicable Individual Property on the date of Closing Date. In addition to prorations and adjustments that may otherwise be provided for in this Agreement, the Effective Time. The following items are to shall be prorated or adjusted, adjusted (as the case may require, requires) with respect to the Individual Property as of the Effective TimeClosing Date:
A. (a) real estate and personal property taxes and assessments;
B. assessments (if the rent payable by tenants under the Commercial Leases; provided that rent and all other sums which are due and payable to MLP by any tenant but uncollected as amount of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums taxes or assessments for the period prior to year in question is not known, then the Effective Time to same shall be remitted to MLP if, as and when collected. On prorated on the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as basis of the most recent date availableascertainable xxxx(s);
(b) rents paid under the Individual Property Leases for the calendar month during which the Closing occurs, and the amount of all such any rents paid to the applicable Property Owner which are applicable to the period subsequent to the calendar month during which the Closing occurs. However, no prorations shall be made for delinquent lot rental amounts or other charges existing as of the Closing. Rents and other charges which at the Closing are unpaid or past due (hereinafter "Delinquent Rents") shall not be prorated. The applicable Property Owner shall not take any action against tenants to collect Delinquent Rents. For ninety (90) days after the Closing, Purchaser shall use reasonable efforts to collect Delinquent Rents, but uncollected rent such undertaking shall not be deemed to obligate Purchaser to expend any funds or institute any legal proceedings of any nature. Rents and other sums owed amounts received by tenantsPurchaser or the applicable Property Owner after the Closing from a tenant owing Delinquent Rents shall be applied, on a tenant by tenant basis: (i) first, to all of Purchaser's costs of collection incurred with respect to Delinquent Rents (including reasonable attorneys' fees and costs); (ii) second, to rents due for the month in which such payment is received by Purchaser; (iii) third, to rents attributable to any period after the Closing which are past due on the date of receipt; and (iv) fourth, to Delinquent Rents. MRY3 For the purpose of the foregoing application of rents, rents received from tenants that are not delinquent shall not be applied to or commingled with Delinquent Rents. The applicable Property Owner shall promptly remit to MLP Purchaser any sums received by such rent or other sums paid party from tenants after the Closing for application (if applicable) to Delinquent Rents by scheduled tenants, notwithstanding that a deficiency Purchaser in the then current rent is thereby createdmanner provided above. MRY3 Purchaser shall xxxx tenants who owe rent for periods prior promptly remit to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For applicable Property Owner any amounts due MLP not collected within thirty (30) days such party on account of Delinquent Rents after application of rents in the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Leasemanner provided above;
C. (c) the full amount of the security and other deposits paid under the Commercial Individual Property Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. (d) water, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, fuel on hand (at cost plus sales tax) and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will shall be handled by meter readings on the Effective TimeClosing Date);
E. (e) amounts due and prepayments under the Other Individual Property Service Contracts or Equipment Leasesbeing assumed by Purchaser;
F. (f) assignable license and permit fees;; and
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date availableg) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other partyitems. Any proration which must be estimated on at the Effective Time Closing (including real estate taxes and personal property taxes) shall be re-prorated reprorated and finally adjusted as soon as practicable within ninety (90) days after the Effective Time; otherwiseClosing Date (or, with respect to the real estate and personal property taxes, within thirty (30) days after receipt of the applicable tax xxxx), otherwise all prorations shall be final.
(ii) Notwithstanding anything to the contrary contained in this Agreement, each Seller shall be responsible for, or shall cause the applicable Property Owner or Diversified to be responsible for, and, at or prior to the Closing, shall pay all amounts due through the Closing for employees' salaries, vacation pay, withholding and payroll taxes, and other compensation and benefits, and any management fee affecting the Individual Property. If and to the extent such Seller has not paid or caused to be paid all such amounts as of the Closing, Purchaser shall receive a credit against the Cash Balance payable at the Closing in an amount equal to the amount not so paid. If and as requested by Purchaser, each Seller shall terminate or cause to be terminated as of the Closing the employment of all employees who work at the Individual Property. The Sellers shall indemnify and hold Purchaser harmless from and against any and all obligations and other matters relative to any terminated employees and, with respect to any employees not terminated, applicable to the period prior to the Closing, including attorneys' fees incurred by Purchaser in connection therewith.
(iii) Purchaser shall receive a credit against the Purchase Price for each dollar of "New Cactus Gardens Value" not generated by the Fee Seller of the Cactus Gardens Property from the date hereof through the Closing Date for such property. "New Cactus Gardens Value" shall mean (a) the number of new rental agreements executed at the Cactus Gardens Property from and after the date hereof for a term encompassing the entire season at the Cactus Gardens Property (which number of new agreements shall not exceed five (5) and shall be reduced on an agreement-for-agreement basis to the extent any of the 277 rental agreements which are in full force and effect for the entire season at the Cactus Gardens Property as of the date hereof is no longer in full force and effect or a viable tenancy as a result of the tenant not arriving at the property to honor such rental agreement as of the Closing Date), (b) multiplied by the net rental income provided for in such rental agreement, (c) divided by 0.0762; provided, however, in no event shall New Cactus Gardens Value exceed $103,346. For example, if the amount of New Cactus Gardens Value equals $100,000, Purchaser would receive a credit equal to $3,346.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Manufactured Home Communities Inc)
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, adjusted (as the case may require, appropriate) as of the Effective TimeClosing Date, it being understood that for purposes of prorations and adjustments, Purchaser shall be deemed the owner of the Property as of the Closing Date and Seller shall be deemed the owner of the Property as of the day prior to the Closing Date; provided, however, that in the event that Seller and Seller's mortgage lender, if any, receive the net funds from the Escrowee after 2 PM (New York, New York time) on the Closing Date due to delay in delivery of funds or closing documents by or on behalf of Purchaser, then, for purposes of prorations and adjustments, Seller shall be deemed the owner of the Property as of the Closing Date and Purchaser shall be deemed the owner of the Property as of the day after the Closing Date:
A. (a) real estate and personal property taxes and assessmentsassessments (initially on the basis of the most recent ascertainable tax xxxx if the current xxxx or evidence sufficient to calculate the amount of the taxes for the period through Closing is not then available);
B. (b) the "minimum" or "base" rent payable by tenants under the Commercial LeasesLeases ("Base Rent"); provided provided, however, that rent and all other sums which are due and payable to MLP Seller by any tenant but uncollected as of the Effective Time Closing shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing to be remitted to MLP Seller if, as and when collected, but only after such rents are first applied towards any unpaid rents first becoming due and payable subsequent to the Closing Date. On If any tenant pays rent in arrears under the Effective Timeterms of its Lease, MLP Seller shall deliver receive a credit at Closing for its share of such tenant's uncollected rent attributable to MRY3 the month in which the Closing occurs (the "Seller's Rent Credit"); provided, however, that in the event that Purchaser does not receive the rent from such tenant for the month in which Closing occurs by the end of the first week of the following month, Seller shall promptly remit Seller's Rent Credit to Purchaser. At Closing, the Closing Statement shall contain a schedule (prepared by MLP as of the most recent date available"Closing Delinquency Schedule") of all such past due but uncollected rent and other sums owed by tenants (the "Past Due Rents"). Purchaser shall include the amount of the Past Due Rents in the first bills thereafter submitted to the tenants in question after the Closing and shall continue to do so for six (6) months thereafter. Purchaser shall promptly deliver to Seller a copy of each such xxxx submitted to tenants. MRY3 Purchaser shall promptly remit to MLP Seller any such rent or other sums Past Due Rents paid by scheduled tenantstenants set forth on the Closing Delinquency Schedule, notwithstanding that but only if a deficiency in the then current rent is not thereby created. MRY3 To the extent not set forth on the Closing Delinquency Schedule, percentage or overage rent shall xxxx be prorated as follows: with respect to percentage rents, and upon receipt by Purchaser, Purchaser shall furnish to Seller copies of all sales reports from tenants who owe rent relative thereto, including, without limitation, all sales reports with respect to any tenants whose lease years have expired as of the Closing but whose sales reports were not available on Closing and sales reports of any tenants whose lease year expires after Closing, and the amount of any rents (including, without limitation, percentage or overage rents and Tenant Reimbursements) to be paid by any tenant shall be made in accordance with such tenant's Lease as now existing (Purchaser hereby covenanting and agreeing not to modify the Leases after Closing to change the date and/or method for periods payment of such amounts with respect to the period prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days Closing until after the Effective Timeoccurrence of the reprorations described in Section 4(C)(ii) below) and Purchaser shall, MLP shall have after Closing, promptly pay to Seller a prorata portion of such rents, based upon apportionment being made as of the right to xxx to collect sameClosing Date, but in no event may MLP seek to evict any tenant or terminate any Commercial Leasepromptly after the date when such rents are received from the tenant;
C. (c) with respect to tenant improvement costs and/or allowances or leasing commissions relating to any new leases, or any modification, amendment, restatement or renewal of existing Leases (each, a "New Lease", and collectively, the full "New Leases") executed between the date of this Agreement and Closing with the consent of Purchaser granted (or deemed to be granted) in accordance with Section 10(L)(1) below, Seller and Purchaser agree that such costs, allowances and leasing commissions shall be prorated over the initial term of any such New Lease with Seller being responsible for a portion of such costs, allowances and leasing commissions based on the ratio of Base Rent payments received by Seller through the Closing Date to the total Base Rent payable over the initial term of the particular New Lease and, in the event that Seller has paid such costs, allowances and/or leasing commissions prior to Closing, Purchaser shall reimburse Seller at Closing for the amount of security deposits any such costs, allowances and/or leasing commissions paid under by Seller, based on the Commercial Leasesabove-described proration and, in the event Seller has not paid such costs, allowances and/or leasing commissions prior to Closing, Purchaser shall be responsible for payment of all such costs, allowances and leasing commissions after Closing;
(d) intentionally omitted;
(e) the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to amount of the extent permitted by applicable law) MLP shall have the right to apply security depositsSecurity Deposits, if any, with Purchaser receiving a credit at Closing against delinquent rents and other obligations the Purchase Price in the amount of the tenantssuch Security Deposits;
D. (f) water, sewer, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, fees and use charges, fuel on hand (at cost plus sales tax), and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Timeday immediately preceding the Closing Date);
E. (g) amounts due and prepayments paid or payable under the Other Contracts Service Contracts. Notwithstanding anything in this Agreement to the contrary, (i) Purchaser will receive a credit at Closing for any unpaid amounts under the construction contract with K&D General Contractors, Inc. ("K&D Contract") set forth on Exhibit C, and (ii) Seller shall receive a credit at Closing for any payments that Seller has, prior to Closing, made under the construction contract with Milestone Construction Company ("Milestone Contract") set forth on Exhibit C. Seller further agrees to indemnify, defend and hold Purchaser harmless from and against any costs and expenses incurred by Purchaser under the K&D Contract but not credited to Purchaser at Closing, including, without limitation, reasonable attorneys' fees incurred by Purchaser in enforcing the foregoing indemnity, but not including any costs or Equipment Leasesexpenses related to any amendments, change orders or modifications made to the K&D Contract after Closing;
F. (h) assignable license and permit fees;, if any; and
G. (i) other similar items and expenses of operation.
(ii) Notwithstanding the foregoing and subject to Sections 4(C)(iii) and 4(C)(iv) below, Seller shall in all events be entitled to retain amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due paid by tenants for reimbursement of real estate taxes and payable assessments, common area maintenance, mall maintenance, utility charges, water and sewer charges, insurance and merchant's association dues and assessments and all other charges to MLP or contributions by tenants under the Clay Contracts but uncollected Leases other than Base Rent (such assessments, costs, expenses, dues and charges being referred to herein as the "Tenant Reimbursable Expenses", and the amounts payable by tenants under the Leases with respect to the Tenant Reimbursable Expenses being referred to herein as the "Tenant Reimbursements") as of the Effective Time Closing; provided that any Tenant Reimbursements paid to Seller which pertain to the month of Closing and any months thereafter shall not be adjustedprorated as provided in accordance with Section 4(C)(i) above.
(iii) As soon as practical after Closing, but MRY3 in no event later than May 31, 1999, Seller and Purchaser shall, with respect to any amounts prorated or adjusted at Closing pursuant to Section 4(C)(i) above based on estimates or formulae, as applicable, jointly determine and reapportion such amounts in accordance with Section 4(C)(i) above upon determination of the actual costs or expenses with respect thereto. In the event that the amount credited to Purchaser by Seller at Closing exceeds the amount of the credit that Purchaser should have received had such actual amounts been available at Closing, Purchaser shall use diligent efforts promptly remit such excess amount to Seller. In the event that the amount credited to Seller by Purchaser at Closing exceeds the amount of the credit that Seller should have received at Closing had such actual amounts been available at Closing, Seller shall promptly remit such excess amount to Purchaser. In the event that, after such reapportionment: (1) the amount of Tenant Reimbursements retained by Seller as provided in Section 4(C)(ii) above is less than the amount of Tenant Reimburseable Expenses paid by Seller (whether by direct payment by Seller or by proration as provided in Section 4(C)(i) above) with respect to 1998 and the landlord under the Leases is entitled to recover all or a portion of such expenditures under the terms of Leases, then Purchaser shall xxxx such tenants for such amounts and continue to xxxx such tenants for such amounts until such amounts are collected each month for up to two (2) months thereafter, provide Seller with copies of such bills upon issuance, and collect such amounts on behalf of Seller and, upon receipt, remit such collected amounts to Seller; and (2) the amount of Tenant Reimbursements collected by Seller for 1998 and retained by Seller as provided in Section 4(C)(ii) above exceeds the amount of Tenant Reimburseable Expenses paid by Seller (whether by direct payment by Seller or by proration as provided in Section 4(C)(i) above) with respect to 1998 then, to the extent required under the terms of the Leases, Seller shall promptly remit such excess amounts to the Purchaser; provided that, to the extent any such excess amounts are otherwise payable to tenants owing Past Due Rents, Seller may offset the amounts due to such tenants against Past Due Rents owing to Seller and remit any remaining amounts to Purchaser. Purchaser shall be thereafter obligated to promptly remit the applicable portion to the particular tenants entitled thereto (or apply such amounts to arrearages in rental obligations to the extent permitted under the terms of the applicable Leases), and Purchaser shall indemnify, defend, and hold Seller, its partners, and their respective directors, officers, employees, and agents, and each of them, harmless from and against any losses, claims, damages and liabilities, including, without limitation, reasonable attorneys' fees and expenses incurred in connection therewith, arising out of or resulting from Purchaser's failure to remit any such amounts to tenants in accordance with the provisions hereof.
(iv) Seller shall be responsible for the reconciliation with tenants of Tenant Reimbursements and Tenant Reimbursable Expenses for the calendar year 1997, and (a) in the event the amount of Tenant Reimbursements retained by Seller as provided in Section 4(C)(ii) above is less than the amount of Tenant Reimbursable Expenses paid by Seller (whether by direct payment by Seller or by proration as provided in Section 4(C)(i) above) with respect to 1997 and the landlord under the Leases is entitled to recover such difference under the terms of the Leases, then Seller shall be entitled to xxxx such tenants and retain any such amounts due from tenants, and (b) in the event that the amount of Tenant Reimbursements collected by Seller for 1997 and retained by Seller as provided in Section 4(C)(ii) above exceeds the amount of Tenant Reimbursable Expenses paid by Seller (whether by direct payment by Seller or by proration as provided in Section 4(C)(i) above) with respect to 1997 then, to the extent required under the terms of the Leases, Seller shall promptly remit such excess amounts to the applicable tenants; provided that, to the extent any such excess amounts are otherwise payable to tenants owing Past Due Rents, Seller may offset the amounts due to such tenants against Past Due Rents owing to Seller and remitting any remaining amounts to such tenants.
(v) If Seller has not received all Past Due Rents or other amounts owed to it by tenants within sixty (60) days after the Closing Date or within sixty (60) days after such other amounts may be due, Seller at its sole cost and expense, shall be entitled at any time within the twelve (12) month period after the applicable sixty (60) day period, to commence such actions or proceedings not affecting possession or enforcing landlord's liens or resulting in termination of the Lease in question as Seller shall desire to collect said past-any such Past Due Rents or other amounts, and Purchaser shall cooperate with Seller in any such action.
(vi) For purposes of this Section 4(C), the amount of any expense credited by one party to the other shall be deemed an expense paid by that party. The terms and provisions of this Section 4(C) shall survive the Closing and delivery of the Deed.
(vii) Seller will pay, or cause to be paid, any and all amounts due and owing to employees of Seller or its management agent employed at the Property as of Closing. To the extent (a) any such employees are employed by Seller pursuant to the terms of a union agreement, and (b) any such union employees are hired by Purchaser at Closing, then Seller shall credit Purchaser with an amount equal to all vacation pay and other employee benefits accrued through the Closing, unless Seller is required to pay such amounts to the applicable employees or such other parties pursuant to the terms of the union agreement.
(viii) Tax Appeals Prior Tax Years. Prior to the date hereof, Seller filed an appeal of the assessed value of the tax parcel on which the 0000 Xxxxxxxxxx Xxx building is located (the "6546 Parcel") with respect to tax bills issued in the 1996, 1997 and 1998 calendar years and requesting a corresponding reduction in real estate taxes payable with respect to the tax and/or calendar years covered by such tax bills. Purchaser and Seller hereby agree that: (1) Seller may, after Closing, if it so elects, continue to pursue and control the real estate tax appeal and reduction process with respect to the tax bills referenced herein and shall cause have the right to engage counsel, consultants, expert witnesses and appraisers as Seller shall reasonably determine to be necessary with respect to such amounts receivable process at no cost to Purchaser; (2) Seller shall be responsible for the cost of any counsel, consultant, expert witness or appraiser employed by Seller to obtain any reduction of real estate taxes for such tax and/or calendar years; and (3) Purchaser shall have the right to reasonably approve that portion of any settlement of the tax appeal pertaining to taxes accruing from and after the Closing Date. In the event that any refunds of taxes applicable to any period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared Closing Date have not been received by MLP Seller as of the most recent date available) of Closing, Seller shall retain all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time rights with respect to any refund of such taxes, subject to the Properties, and shall be entitled to any refunds in connection with the termination rights of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be finaltenants under Leases.
Appears in 1 contract
Samples: Real Estate Sale Agreement (First Capital Institutional Real Estate LTD 2)
Closing Prorations and Adjustments. The following shall be prorated and adjusted between Seller and the Purchaser as of the Closing Date, except as otherwise specified:
(a) A rent roll (updated to within 15 days prior The cost of the Title Insurance, and Survey, and the documentary state, county and local transfer taxes relating to the Effective Time) and a proposed statement instruments of prorations, and other adjustments conveyance contemplated herein shall be prepared paid by MRY3 in conformity with the provisions of this Agreement not less than three Purchaser;
(3b) business days prior Amounts paid or payable under Contracts relating to the Effective Time. For purposes of prorationsbusiness, each Assignment if any, shall be deemed to have occurred prorated as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, as the case may require, as of the Effective Time:
A. real estate and personal property taxes and assessmentsset forth below;
B. the rent payable by tenants under the Commercial Leases; provided that rent and all other sums (c) All assessments, general or special, which are due and payable and/or levied due and payable prior to MLP Closing, shall be paid by any tenant but uncollected Seller prior to Closing;
(d) All documentary state, county and local transfer taxes relating to the instruments of conveyance contemplated herein shall be paid by Seller; all general real estate taxes shall be prorated at the time of closing based on the most recently ascertainable real estate tax bill xxx be prorated as set forth below;
(e) All general real estate taxes shall be prorated at the time of closing based on the most recently ascertainable real estate tax bill xxx reported as set forth below;
(f) Resident rents relative to the Purchased Assets shall be prorated as set forth below;
(g) A $15,000 Payment shall be made by Seller to Purchaser and accounted for as a Purchase Price adjustment credit in favor of the Purchaser for the upgrade of the fire protection systems at the Facilities as required by the Department of Health and Family Services for community-based residential care licenses issued after January 1, 1997; and
(h) Such other items agreed to in writing between the parties or that are customarily prorated in transactions of this nature shall be ratably prorated. For purposes of calculating prorations, Seller shall be deemed to be in title to the Facilities for the entire day upon which the Closing occurs. All such prorations shall be made on the basis of the actual number of days of the year and month which shall have elapsed as of the Effective Time Closing Date. To the extent not ascertainable at the Closing Date, the amount of such prorations shall not be adjusted, adjusted in cash after Closing as and when complete and accurate information becomes available but MRY3 shall only in the event that such proration is greater than $250. Seller and Purchaser agree to cooperate and use their diligent and good faith efforts to collect said past-due rents make such adjustments no later than 30 days after the Closing. Items of income and shall cause the rent and other sums expense for the period prior to and including the Effective Time Closing Date will be for the account of Seller and items of income and expense for the period after the Closing Date will be for the account of Purchaser, all as determined by the accrual method of accounting. Bills received after Closing which relate to be remitted to MLP ifexpenses incurred, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 shall promptly remit to MLP any such rent services performed or other sums paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. water, electric, telephone and all other utility charges with respect to the Properties, and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time);
E. amounts due and prepayments under the Other Contracts or Equipment Leases;
F. assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to and including the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall Closing Date will be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be finalSeller.
Appears in 1 contract
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, prorations and other adjustments shall be prepared by MRY3 Acquiror in conformity with the provisions of this Agreement and submitted to Contributor for review not less than three (3) business days prior to the Effective TimeClosing Date (with respect to the Properties) or the Additional Closing Date (with respect to the Additional Property). For purposes of prorations, each Assignment Acquiror shall be deemed to have occurred as the owner of 12:01 a.m. the Properties on the date of Closing Date and the Effective TimeAdditional Property on the Additional Closing Date. The In addition to prorations and adjustments that may otherwise be provided for in this Agreement, the following items are to be prorated or adjustedadjusted (as the case requires) as of the Closing Date or the Additional Closing Date, as the case may require, as of the Effective Timebe:
A. real estate and personal property taxes and assessments;
B. the rent payable by tenants under the Commercial Leases; provided that rent and all other sums which are due and payable to MLP by any tenant but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date availablea) of all such past due but uncollected rent and other sums owed by tenants. MRY3 shall promptly remit to MLP any such rent or other sums paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. the full amount of the security and other deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that under the Leases, shall be credited to Acquiror;
(b) To the extent such charges are not billed directly to Tenants, water, electricity, sewer, gas, telephone and other utility charges shall be prorated based, to the extent permitted by applicable law) MLP shall have the right to apply security depositspracticable, on final meter readings and final invoices, or, if anyfinal readings and invoices are not available, against delinquent rents based on the most currently available billing information, and other obligations reprorated upon issuance of final utility bills;
(c) Amounts paid or payable under any Service Contracts being assigned to Acquiror shall be prorated based, to the extent practicable, on final invoices or, in the event final invoices are not available, based on the most currently available billing information, and reprorated upon issuance of final invoices;
(d) All assessments, general or special, shall be prorated as of the tenantsClosing Date on a "lien" basis such that the Contributor shall be responsible for the portion of such assessments which first become a lien and relate to the period prior to the Closing Date and are not paid by the tenants under the Leases, and Acquiror shall be responsible for the portion of such assessments which relate to the period on or after the Closing Date;
D. water(e) Except as otherwise provided in Section 6C(g), electriccommissions of leasing and rental agents for any Lease entered into as of or prior to the Closing Date that are due and payable at or prior to the Closing Date, telephone and all other utility charges whether with respect to base lease term, future expansions, renewals, or otherwise, shall be paid in full at or prior to Closing by the PropertiesContributor, without contribution or proration from Acquiror;
(f) All Base Rents (as defined below) and any assignable deposits with utility companies specifically allocable other charges actually received, including, without limitation, all Additional Rent (as defined below), shall be prorated at Closing. At the time(s) of final calculation and collection from tenants of Additional Rent for 1998, there shall be a re-proration between Acquiror and the Contributor as to Additional Rent adjustments, which re-proration shall be paid upon Acquiror's presentation of its final accounting to the Properties Contributor, certified as to accuracy by Acquiror. The party's respective obligations to reprorate Additional Rent shall survive the Closing and shall not merge into any instrument of conveyance delivered at Closing. At the Closing, no "Delinquent Rents" (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time);
E. amounts due and prepayments under the Other Contracts rents or Equipment Leases;
F. assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable other charges which are due and payable to MLP under the Clay Contracts but uncollected owing as of the Effective Time Closing) shall not be adjustedprorated in favor of the Contributor. Notwithstanding the foregoing, Acquiror shall use reasonable efforts after the Closing Date to collect any Delinquent Rents due to th Contributor from tenants. Further, after the Closing Date, the Contributor shall continue to have the right, enforceable at its sole expense, to pursue legal action against any tenant (and any guarantors) who have defaulted, prior to the Closing Date, under a Lease; provided, however, that the Contributor gives Acquiror advance written notice of its intent to pursue such action and further provided that the Contributor shall have no right to terminate any Lease (or any right to dispossess any tenant thereunder). All rents and other charges received from any tenant after the Closing by and for the benefit of Acquiror shall be applied, first, against current and past due rental obligations owed to, or for the benefit of, Acquiror with respect to those rental obligations accruing subsequent to the Closing Date (including, but MRY3 not limited to, obligations to replenish any security deposit withdrawal by the Contributor or Acquiror), or any obligations accruing prior to the Closing Date that the Contributor does not pay or for which Acquiror does not receive a credit at Closing, and second, any excess shall use diligent efforts be delivered to collect said past-due amounts the Contributor, but only to the extent of Delinquent Rents owed to, and shall cause such amounts receivable for the benefit of, the Contributor for the period prior to the Effective Time Closing Date (in no event, however, shall any sums be paid to be remitted the Contributor to MLP if, as the extent it has been previously reimbursed for such default out of any security deposit);
(g) The Contributor and when collected. On Acquiror acknowledge that various of the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP Properties and the Additional Property may contain certain vacancies as of the most recent date available) of this Agreement and all such past due but uncollected receivablescurrent vacancies are reflected on the Rent Roll (the "Vacancies"). MRY3 shall promptly remit to MLP If a new lease for any such receivables paid under Vacancy ("Vacancy Lease") is executed prior to Closing or the Clay ContractsAdditional Closing and the terms of such Vacancy Lease have been approved by Acquiror, notwithstanding then the applicable Contributor and Acquiror shall each bear a pro rata share, of the tenant improvement costs and brokerage commission attributable to the Vacancy Lease (the "Vacancy Lease Costs"). The Contributor's proportionate share of the Vacancy Lease Costs shall be based on that portion of the Vacancy Lease's term commencing on and after the date the tenant commences paying rent that elapses prior to Closing or the Additional Closing, a deficiency the case may be, and Acquiror's proportionate share shall be based on that portion of the Vacancy Lease's term commencing on and after the date the tenant commences paying rent that remains unexpired as of the Closing Date or the Additional Closing Date, as the case may be. The Contributor shall pay all Vacancy Lease Costs and Acquiror shall reimburse the Contributor for its proportionate share of such Vacancy Lease Costs by way of an Adjustment in the then current receivables Contribution Consideration or Additional Consideration, as the case may be. If this Agreement is thereby created;
H. other expenses of operation and similar items customarily prorated in connection terminated prior to Closin (with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance respect to one or termination of any insurance policies maintained by MLP more Properties) or prior to the Effective Time Additional Closing (with respect to the PropertiesAdditional Property), then Acquiror shall have no liability or obligation with respect to any Vacancy Lease or any Vacancy Lease Costs with respect to such Properties or Additional Property.
(h) All interest and other amounts payable on the Permitted Existing Indebtedness to the extent the same is to be assigned to, and assumed by, Acquiror.
(i) Such other items that are customarily prorated in transactions of this nature shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations ratably prorated, provided there shall be no proration of real estate taxes, personal property and ad valorem taxes applicable to the Properties or Additional Property because such Taxes are paid by the tenants when due pursuant to the Leases.
(ii) For purposes of calculating prorations, Acquiror shall be deemed to be in cash on title to the Effective Time to MLP Properties or MRY3the Additional Property, as the case may be, by and therefore entitled to the other partyincome therefrom and responsible for the expenses thereof, for the entire Closing Date or Additional Closing Date, as the case may be. Any All such prorations shall be made on the basis of the actual number of days of the year and month that shall have elapsed as of the Closing Date or Additional Closing Date, as the case may be. Except with respect to general real estate and personal property taxes that are to be reprorated as aforesaid, any proration which must be estimated on at the Effective Time Closing or the Additional Closing shall be re-prorated reprorated and finally adjusted as soon as practicable within ninety (90) days after the Effective TimeClosing Date or Additional Closing Date, as the case may be; otherwise, otherwise all prorations shall be final.
Appears in 1 contract
Samples: Contribution Agreement (American Real Estate Investment Corp)
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, adjusted (as the case may require, appropriate) as of the Effective Timeclose of business on the Closing Date, it being understood that for purposes of prorations and adjustments, Seller shall be deemed the owner of the Property on such day and Purchaser shall be deemed the owner of the Property as of the day after the Closing Date:
A. (a) real estate and personal property taxes and assessmentsassessments (on the basis of the most recent ascertainable tax xxxx if the current xxxx is not then available);
B. (b) the "minimum" or "base" rent payable by tenants under the Commercial Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Seller by any tenant but uncollected as of the Effective Time Closing shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing to be remitted to MLP Seller if, as and when collected. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 Purchaser shall include the amount of such rent and other sums in the first bills thereafter submitted to the tenants in question after the Closing, and shall continue to do so for twelve (12) months thereafter. Purchaser shall promptly remit to MLP Seller any such rent or other sums paid by scheduled tenants, notwithstanding that but only if a deficiency in the then current rent is not thereby created. MRY3 To the extent not set forth on said schedule, percentage or overage rent and reimbursement of real estate taxes payable, common area maintenance, mall maintenance, utility charges, water and sewer charges, insurance and merchant's association dues and assessments and all other charges to or contributions by tenants under the Leases shall xxxx be prorated as follows: with respect to percentage rents, and upon receipt by Purchaser, Purchaser shall furnish to Seller copies of all sales reports from tenants who owe relative thereto, including, without limitation, all sales reports with respect to any tenants whose lease years have expired as of the Closing but whose sales reports were not available on Closing and sales reports of any tenants whose lease year expires after the Closing, and the amount of any rents (including, without limitation, percentage rents), reimbursement or contribution to be made by any tenant shall be made in accordance with such tenant's Lease as now existing and Purchaser shall promptly pay to Seller a pro-rata portion of such rents, reimbursement or contribution, based upon apportionment being made as of the Closing Date, promptly after the date when such rents, reimbursement or contribution is received from the tenant;
(c) with respect to tenant improvement costs or leasing commissions relating to Leases or New Leases (as hereinafter defined) executed after [the date hereof] Seller and Purchaser agree that such costs and commissions shall be prorated over the term of any such Lease or New Lease with Seller being responsible for a portion of such costs and commissions based on the ratio of base rent for periods prior payments received by Seller through the Closing Date to the Effective Time on a monthly basis for six consecutive months following total base rent payable over the Effective Time. For amounts due MLP not collected within thirty term of the particular Lease.
(30d) days after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. (e) water, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, fuel on hand (at cost plus sales tax), and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Timeday immediately preceding the Closing Date);
E. (f) amounts due and prepayments under the Other Contracts or Equipment LeasesService Contracts;
F. (g) assignable license and permit fees;; and
G. (h) other similar items of income and expenses of operation.
(ii) Notwithstanding the foregoing, Seller shall in all events be entitled to retain amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due paid by tenants for real estate taxes and payable to MLP under the Clay Contracts but uncollected assessments and common area expenses as of the Effective Time shall Closing to the extent not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts in excess of such taxes and shall cause such amounts receivable expenses paid by Seller for the period prior to the Effective Time Closing Date. Further, for purposes of this Section 4(C), the amount of any expense credited by one party to the other shall be remitted deemed an expense paid by that party.
(iii) Notwithstanding anything to MLP ifthe contrary contained in this Section 4, as Seller reserves the right to meet with governmental officials and when collected. On to contest the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as 1996 real estate tax assessment of the most recent date available) Property or any portion thereof, and to attempt to obtain a refund for any taxes previously paid. Seller shall retain all rights with respect to any refund of all such past due but uncollected receivables. MRY3 shall promptly remit taxes applicable to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP period prior to the Effective Time with respect to the PropertiesClosing Date, and shall be entitled to except for any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration such refunded amounts which must be estimated on refunded to tenants under the Effective Time shall be re-prorated and finally adjusted as soon as practicable after terms of the Effective Time; otherwise, all prorations shall be finalLeases.
Appears in 1 contract
Samples: Real Estate Sale Agreement (First Capital Income & Growth Fund Series Xii)
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to the Effective Time) and Seller shall prepare a proposed statement of prorationsthe prorations and adjustments required by this Agreement (the “Closing Statement”), and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three submit it to Purchaser for approval at least ten (310) business days prior to the Effective TimeClosing Date. For purposes of prorationsExcept as otherwise provided below, each Assignment shall the items listed below are to be deemed to have occurred equitably prorated or adjusted as of 12:01 a.m. local time at the Real Property on the date Closing Date, it being understood that for purposes of prorations and adjustments, Purchaser shall be deemed the owner of the Effective TimeProperty on such day and Seller shall be deemed the owner of the Property prior to such day. The following items are to be prorated or adjusted, as provisions of this Section 4.3 that contemplate post-Closing adjustments shall survive Closing for the case may require, as applicable period of the Effective Time:time set forth in this Section 4.3.
A. real 4.3.1 Real estate and personal property taxes and assessments and other state, county and municipal taxes (other than conveyance or other transfer taxes), charges and assessments;
B. , as well as any assessments by private covenant constituting a lien or charge on the rent payable by tenants under Property (collectively, “Real Estate Taxes”) shall be prorated at Closing for the Commercial Leases; provided that rent and all other sums which are due and payable to MLP by any tenant but uncollected as then-current fiscal year of the Effective Time applicable taxing authority in which the Closing Date occurs (the “Current Tax Year”), such that Seller shall not be adjusted, but MRY3 shall use diligent efforts responsible for all Real Estate Taxes that are attributable to collect said past-due rents and shall cause the rent and other sums for the period prior to the Effective Time Closing Date and Purchaser shall be responsible for all Real Estate Taxes that are attributable to be remitted the period from and after the Closing Date. Notwithstanding the foregoing, in the event and to MLP ifthe extent that the tenants under the Leases have paid, as and when collected. On the Effective Time, MLP shall deliver pay or are required to MRY3 a schedule (prepared by MLP as pay any portion of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 shall promptly remit to MLP any such rent or other sums paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior Real Estate Taxes directly to the Effective Time on a monthly basis for six consecutive months following relevant taxing authority or authorities, such portion of the Effective TimeReal Estate Taxes shall not be prorated. For amounts due MLP not collected within thirty (30) days after Notwithstanding anything contained herein, any refunds or rebates of Real Estate Taxes which accrued before the Effective TimeClosing Date shall remain the property of Seller, MLP and Seller shall have the right to xxx pursue any appeals filed prior to collect samethe Effective Date of Real Estate Taxes attributable to Seller’s period of ownership of ImanageDB:4161238.11 the Property (including any appeal of Real Estate Taxes for the year in which Closing occurs) with respect to tax assessments for the Property. Seller may also file appeals for the 2018-2019 Real Property Tax year if the deadlines for such appeals fall before the Closing Date, but provided that upon Closing Seller shall upon Purchaser’s request either dismiss such appeals or cooperate with Purchaser’s substitution for Seller in the appeals. Purchaser shall cooperate with Seller in connection with any such appeal at no event may MLP seek out of pocket cost to evict Purchaser. If Seller is successful in any tenant such tax appeal related to the fiscal tax period in which Closing occurs, any rebates or terminate any Commercial Lease;
C. refunds shall be apportioned between the full amount parties in the same proportion as the proration of security deposits paid under Real Estate Taxes set forth on the Commercial LeasesClosing Statement executed by the parties at Closing. Seller will also calculate and refund to the Tenants’ accounts credits and charges if and where applicable. Seller will provide copies of this calculation, along with copies of the statements, to Purchaser, along with any balance due to Purchaser. If Purchaser is successful in any appeal of Real Estate Taxes which accrued during Seller’s period of ownership of the extent unappliedProperty, any rebates or refunds shall be apportioned between the parties in the same proportion as the proration of the Real Estate Taxes set forth on the Closing Statement executed by the parties at Closing. Purchaser will also calculate and apply credits and charges to Tenant’s accounts, where applicable. Purchaser will provide copies of this calculation, along with copies of the statements, to Seller, together with interest thereon if required any balance due to Seller. Either party that is successful in any appeal of Real Estate Taxes contemplated by law or otherwise; provided that (this Section 4.3.1 shall be able to the extent permitted by applicable law) MLP shall have the right deduct its actual, documented, out-of-pocket costs paid to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. water, electric, telephone and all other utility charges with respect to the Properties, and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time);
E. amounts due and prepayments under the Other Contracts or Equipment Leases;
F. assignable license and permit fees;
G. amounts receivable non-affiliated third parties in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under tax appeal from the Clay Contracts but uncollected as rebates or refunds received before apportionment of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policiesbalance thereof. The net amount provisions of any prorations this Section 4.3.1 shall be paid in cash on survive the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be finalClosing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Alexander & Baldwin, Inc.)
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, adjusted (as the case may require, appropriate) as of the Effective Timeclose of business on the Closing Date, it being understood that for purposes of prorations and adjustments, Seller shall be deemed the owner of the Property on such day and Purchaser shall be deemed the owner of the Property as of the day after the Closing Date:
A. (a) real estate and personal property taxes and assessmentsassessments (on the basis of the most recent ascertainable tax xxxx if the current xxxx is not then available);
B. (b) the "minimum" or "base" rent payable by tenants under the Commercial Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Seller by any tenant but uncollected as of the Effective Time Closing shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing to be remitted to MLP Seller if, as and when collected. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 Purchaser shall include the amount of such rent and other sums in the first bills thereafter submitted to the tenants in question after the Closing, and shall continue to do so for twelve (12) months thereafter. Purchaser shall promptly remit to MLP Seller any such rent or other sums paid by scheduled tenants, notwithstanding that but only if a deficiency in the then current rent is not thereby created. MRY3 To the extent not set forth on said schedule, percentage or overage rent and 4 reimbursement of real estate taxes payable, common area maintenance, mall maintenance, utility charges, water and sewer charges, insurance and merchant's association dues and assessments and all other charges to or contributions by tenants under the Leases shall xxxx be prorated as follows: with respect to percentage rents, and upon receipt by Purchaser, Purchaser shall furnish to Seller copies of all sales reports from tenants who owe rent for periods prior relative thereto, including, without limitation, all sales reports with respect to any tenants whose lease years have expired as of the Effective Time Closing but whose sales reports were not available on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days Closing and sales reports of any tenants whose lease year expires after the Effective TimeClosing, MLP shall have and the right amount of any rents (including, without limitation, percentage rents), reimbursement or contribution to xxx to collect same, but in no event may MLP seek to evict be made by any tenant shall be made in accordance with such tenant's Lease as now existing and Purchaser shall promptly pay to Seller a prorata portion of such rents, reimbursement or terminate any Commercial Leasecontribution, based upon apportionment being made as of the Closing Date, promptly after the date when such rents, reimbursement or contribution is received from the tenant;
C. (c) the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. (d) water, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, fuel on hand (at cost plus sales tax), and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Timeday immediately preceding the Closing Date);
E. (e) amounts due and prepayments under the Other Service Contracts; provided, however, that Purchaser shall be responsible for the payment of any termination fees payable in connection with the termination of any Service Contracts or Equipment Leasesrequired by Purchaser at Closing, together with the amounts due under such Service Contracts from the Closing Date through the effective date of such terminations;
F. (f) assignable license and permit fees;; and
G. (g) other similar items of income and expenses of operation customarily prorated in transactions of this nature.
(ii) Notwithstanding the foregoing, Seller shall in all events be entitled to retain amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due paid by tenants for real estate taxes and payable to MLP under the Clay Contracts but uncollected assessments and common area expenses as of the Effective Time shall Closing to the extent not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts in excess of such taxes and shall cause such amounts receivable expenses paid by Seller for the period prior to the Effective Time to be remitted to MLP ifClosing Date. Further, as and when collected. On for purposes of this Section 4(C), the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations expense credited by one party to the other shall be deemed an expense paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other that party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be final.
Appears in 1 contract
Samples: Real Estate Sale Agreement (First Capital Institutional Real Estate LTD 2)
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, prorations and other adjustments shall be prepared by MRY3 Seller and Purchaser together in conformity with the provisions of this Agreement not less than three ten (310) business days prior to the Effective TimeClosing Date. For purposes of prorations, each Assignment Purchaser shall be deemed to have occurred as the owner of 12:01 a.m. the Property on the date of Closing Date. In addition to prorations and other adjustments that may otherwise be provided for in this Agreement, the Effective Time. The following items are to be prorated or adjusted, as the case may require, as of the Effective TimeClosing Date:
A. (a) real estate and personal property taxes and assessmentsassessments (initially prorated on the basis of the most recent ascertainable bilx, xut subject to reproration upon issuance of the actual bilx xxerefor to effectuate the actual proration);
B. (b) the rent rent, utility and other charges payable by tenants under the Commercial Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Seller or the Affiliates by any tenant but uncollected as of the Effective Time Closing shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing to be remitted to MLP Seller if, as and when collected. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 Purchaser shall promptly remit to MLP Seller any such rent or other sums paid by scheduled tenants, notwithstanding that but only if a deficiency in the then current rent and other sums due is not thereby created. MRY3 Purchaser shall xxxx tenants bilx xxnants who owe rent rent, and utility and other charges for periods prior to the Effective Time Closing on a monthly basis for six consecutive months following the Effective TimeClosing Date. For amounts due MLP Seller not collected within thirty six (306) days months after Closing, Seller or the Effective Time, MLP Affiliates shall have the right to xxx to sue xx collect same, but in no event may MLP Seller or the Affiliates seek to evict any tenant or terminate any Commercial Lease. Seller shall promptly remit to Purchaser any rent and other sums that are delivered to it after Closing and that Purchaser is entitled to under this provision;
C. (c) the full amount of security deposits paid under the Commercial Leases, to the extent unappliedunapplied (provided that the amount applied was as herein permitted), together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. (d) water, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, fuel on hand (at cost plus sales tax), and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective TimeClosing Date);
E. (e) subject to Section 3(E), amounts due and prepayments under the Other Contracts or Equipment LeasesService Contracts;
F. (f) assignable license and permit fees;
G. amounts receivable in connection with (g) if a Property is sold subject to the Clay Contracts provided Bonds, all interest payments related to the Bond Financing, annual fees required to be paid pursuant to the Bond Documents, and any trustee, agency or remarketing fees or expenses that amounts receivable which are due have accrued and payable to MLP under the Clay Contracts but uncollected remain unpaid or have been paid as of the Effective Time Closing Date. In addition, Seller shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable receive a credit towards the Purchase Price for the period prior any escrowed funds or funds in any reserve account with respect to the Effective Time Bonds (on a Property sold subject to be remitted the Bonds) that are not returned to MLP if, as and when collected. On Seller or the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby createdAffiliate;
H. (h) if a Property is sold subject to the Bonds, Purchaser shall receive a credit against the Purchase Price in an amount equal to the outstanding indebtedness related to the Bonds; and
(i) other expenses of operation and similar items customarily prorated items, including without limitation, advertising expenses, provided, however, all such expenses are prepaid expenses that were not incurred in violation of this Agreement and are consistent with Seller's past practices.
(j) Purchaser shall receive a credit against the Purchase Price in the amount of $650,000 in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees masonite at Willow Bend Lake Apartments and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time Forestwood Apartments. Except with respect to the Properties, general real estate and personal property taxes (which shall be entitled to reprorated upon the issuance of the actual bills, if necessary), any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time at Closing shall be re-prorated reprorated and finally adjusted as soon as practicable after the Effective TimeClosing Date but no later than one (1) year from the applicable Closing Date; otherwise, otherwise all prorations shall be final, absent manifest error.
(ii) Notwithstanding anything to the contrary contained in this Agreement, Seller shall be responsible for (i) all amounts due through Closing for employees' salaries, vacation pay, withholding and payroll taxes, and (ii) all other amounts to which its employees shall have become entitled on or prior to the Closing Date under employee benefit arrangements maintained by the Seller or under applicable law. Seller shall be responsible for any management fee affecting the Property prior to the Closing Date. Purchaser shall be solely responsible for all liabilities to its employees for benefits or other amounts to which such employees become entitled after the Closing Date under employee benefit arrangements maintained by Purchaser or under applicable law. This Section shall survive the Closing until the period of the applicable statute of limitations has run.
(iii) Seller shall, subject to Seller's and any Affiliate's right to contest by appropriate proceedings, be responsible for and comply or remedy all notes or notices of violation of law or municipal ordinances, orders or requirements that have been noted in or issued by any federal, state or municipal department having jurisdiction over the Property prior to the date hereof. If same has not been remedied or complied with at or prior to Closing, Purchaser shall receive a credit for the reasonable cost to complete same, as determined by Seller, subject to Seller's and any Affiliate's right to contest by appropriate proceedings, provided that Seller provides adequate security to Purchaser for such costs if such contest is not successful. Purchaser shall be responsible for and shall reimburse Seller for the costs to comply or remedy all notes or notices of violation of law or municipal ordinances, orders or requirements that have been noted in or issued by any federal, state or municipal department having jurisdiction over the Property after the date hereof. Seller may agree to obtain such reimbursement by way of a closing adjustment.
Appears in 1 contract
Samples: Agreement for Purchase of Real Estate (New Plan Excel Realty Trust Inc)
Closing Prorations and Adjustments. (a) A rent roll (updated With respect to within 15 days the Closing, Sellers shall prepare a separate Closing Statement of the prorations and adjustments required by this Agreement and submit it to Purchaser at least 10 Business Days prior to the Effective Time) and a proposed statement of prorationsClosing Date, and other adjustments shall which Closing Statement must be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior reasonably acceptable to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective TimePurchaser. The following items are to be prorated prorated, adjusted or adjustedcredited (as appropriate), as it being understood that for purposes of prorations and adjustments, the case may require, as applicable Seller shall be deemed to be the owner of the Effective Timeapplicable Property prior to but not including the Closing Date and Purchaser shall be deemed to be the owner of the applicable Property on and following the Closing Date:
A. 4.4.1 real estate and personal property taxes Taxes and assessments;
B. , in each case, with the rent payable by tenants under applicable Seller responsible for Taxes attributable to the Commercial Leases; provided that rent and all other sums which are due and payable to MLP by any tenant but uncollected as portion of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums for the period Tax year which is prior to the Effective Time Closing Date and Purchaser responsible for Taxes attributable to the remainder of the Tax year (which prorations shall be remitted to MLP if, as and when collected. On calculated on the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as basis of the most recent date available Tax xxxx if the current xxxx is not then available) );
4.4.2 sales, occupancy, room, telecommunications, beverage and similar Taxes to which the operations of all such past due but uncollected rent any Hotel is subject (the Taxes in this Section 4.4.2, “Hotel Taxes”), in each case, with the applicable Seller responsible for Hotel Taxes attributable to the portion of the Tax period which is prior to the Closing Date and Purchaser responsible for Hotel Taxes attributable to the portion of the Tax period on or after the Closing Date;
4.4.3 monthly rents and other sums owed by tenants. MRY3 fixed periodic payments under the Leases assigned to Purchaser in accordance with the terms of this Agreement; provided that no proration shall promptly remit to MLP be made of any rent or other revenue item which is overdue as of the Closing Date until such rent or other sums revenue item is actually received, at which time it shall be prorated and paid to Purchaser or the applicable Seller in accordance with the terms of this Agreement. To the extent Purchaser receives rents (including operating expense, Tax and insurance charges payable by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time ) on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days or after the Effective TimeClosing Date that are not included as accounts receivable subject to Section 4.4.9, MLP such payments, less reasonable costs of collection, shall have be applied first toward the right to xxx to collect same, but payment in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent all rents and other obligations amounts due to Purchaser with respect to periods following the Closing, then allocated for the month of the tenantsClosing and thereafter the balance applied to delinquent rents or other amounts due to Sellers, with Sellers’ share thereof being delivered to Seller within five days after Purchaser’s receipt of such amounts;
D. 4.4.4 water, electric, telephone and all other utility and fuel charges with respect to (on the Propertiesbasis of the number of days in each applicable xxxx occurring prior to, and on or after, the Closing Date) and fuel on hand (at cost plus sales Tax); provided, however, that any assignable deposits with utility companies specifically allocable to shall remain the Properties (said assignable deposits being credited to MLP) (to property of the extent possible, utility prorations will applicable Seller and shall not be handled by meter readings on the Effective Time)prorated or credited;
E. 4.4.5 amounts due and prepayments payable by the applicable Seller under the Other Service Contracts or Equipment Leasesassigned to Purchaser at the Closing in accordance with the terms of this Agreement;
F. 4.4.6 assignable license and permit fees;
G. 4.4.7 accrued and unpaid tour and travel agent commissions;
4.4.8 the balance (less any contested charges) of the open and unpaid account (“Guest Ledger Account”) for each person who is a guest at a Hotel on the day immediately preceding the Closing Date shall be assigned to Purchaser and prorated between the applicable Seller and Purchaser as follows:
(a) all room revenue posted for all days preceding the Closing Date shall belong to the applicable Seller but shall be paid over to such Seller only as and when actually collected (less reasonable administrative and collection costs), except for the day immediately preceding the Closing Date, which shall be allocated one-half to Purchaser and one-half to the applicable Seller. The applicable Seller shall be responsible for all Taxes and franchise fees for all guest charges preceding the Closing Date, except for the day immediately preceding the Closing Date, which shall be allocated one-half to Purchaser and one-half to the applicable Seller; and
(b) all room revenue posted for all days on and after the Closing Date shall be allocated to Purchaser;
4.4.9 any accounts receivable with respect to a Hotel accruing prior to 11:59 local time (with respect to the applicable Hotel) on the day immediately preceding the Closing Date (“Accounts Receivable”) will not be transferred to Purchaser at the Closing, but rather will be retained by the applicable Seller. Purchaser will deliver to the applicable Seller (and shall promptly instruct the applicable property manager, as its agent, to deliver to the applicable Seller) all checks and other forms of payments received by Purchaser at such Hotel that constitute payment of all or part of any Account Receivable. Payments received from payors owing payment both on an Account Receivable and on an account payable for goods or services rendered on or after the Closing Date will be applied first in accordance with the invoice for which the payment is invoiced (including any designation included in an invoice from internet travel providers or other vendors covering multiple transactions). Any payments from payors that owe amounts receivable on Accounts Receivable and also owe amounts on an account payable for goods or services rendered on or after the Closing Date to Purchaser which do not include such a designation shall be applied first to current amounts (i.e., payments not more than 60 days past due and not being disputed by the payee on Accounts Receivable), then to Purchaser to be applied to amounts owing to Purchaser and any excess shall be applied to any other Accounts Receivable from that payor;
4.4.10 any outstanding deposits or advance payments received and retained by or on behalf of any Seller in connection with any reservation at a Hotel, in the form of a credit against (i.e., a reduction of) the Purchase Price payable to such Seller;
4.4.11 any gift certificate or other writing (other than trade agreements and food and beverage discount coupons) issued by any Seller or manager of a Hotel which entitles the holder or bearer to a credit (whether in a specified dollar amount or for a specified item, such as a room night or meal) to be applied against the usual charge for rooms, meals and/or other goods or services at any Hotel, in the form of a credit against (i.e., a reduction of) the Purchase Price to such Seller;
4.4.12 the outstanding balance of all security deposits under the Leases assigned to Purchaser at the Closing in accordance with the terms of this Agreement;
4.4.13 all cash on hand at each Hotel, with such cash retained by Purchaser and the amount of the same increasing the Purchase Price payable to the Seller that owns the applicable Hotel (Sellers shall perform, or cause to be performed, an accounting of cash on hand at the Property (i.e., in house banks, xxxxx cash, including till money and, to the extent the same are the property of Sellers, vending machines and pay telephones) in the presence of a representative of Purchaser);
4.4.14 any utility deposits with any utility in respect of the operation of a Hotel shall be deemed to have been sold to Purchaser and shall become the property of Purchaser and the amount of the same increasing the Purchase Price to the Seller that owns the applicable Hotel; and
4.4.15 such other items as are usually and customarily prorated between purchasers and sellers of hotel properties in the location of the applicable Real Property. The Purchase Price shall be further adjusted at the Closing in respect of property improvement plans required in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected Replacement Franchise Agreements as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collectedset forth in Section 4.7. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time Except with respect to the Properties, general real estate and personal property Taxes (which shall be entitled to reprorated upon the issuance of the actual bills), any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on at the Effective Time Closing shall be re-prorated reprorated and finally adjusted as soon as practicable on the date that is 365 days after the Effective TimeClosing Date; otherwise, all prorations shall be final. No later than 350 days after the Closing Date, Purchaser shall prepare and deliver to Sellers a final Closing Statement with respect to the Closing; provided that if Purchaser shall fail to deliver such final Closing Statement within such 350-day period, Sellers may prepare and deliver such statement to Purchaser (and Purchaser shall cooperate fully with Sellers’ efforts to do the same). If within 10 days following the delivery of the final Closing Statement to either Sellers or Purchaser, as applicable, Sellers or Purchaser, as applicable, have/has not given the other written notice of its objection as to the amount of final prorations (which notice shall state the basis of Sellers’ or Purchaser’s objection, as applicable), such amount shall be paid over to Sellers or Purchaser, as applicable, within three Business Days thereof. If Sellers or Purchaser, as applicable, duly give/gives the other such written objection notice, and if Sellers and Purchaser fail to resolve in good faith the issues outstanding with respect to the amount of final prorations within thirty 30 days of the applicable party’s receipt of such written objection notice, Sellers and Purchaser shall submit the issues remaining in dispute to Ernst & Young (the “Independent Accountants”) for resolution. If issues are submitted to the Independent Accountants for resolution, (i) Sellers and Purchaser shall furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that party or its agents and shall be afforded the opportunity to present to the Independent Accountants any material relating to the disputed issues and to discuss the issues with the Independent Accountants; (ii) the determination by the Independent Accountants, as set forth in a notice to be delivered to both Sellers and Purchaser within 60 days of the submission to the Independent Accountants of the issues remaining in dispute, shall be final, binding and conclusive on the parties; and (iii) Sellers and Purchaser will each bear fifty percent (50%) of the fees and costs of the Independent Accountants for such determination. Purchaser shall have the exclusive right to seek adjustments to real estate, ad valorem and/or personal property Tax rates imposed upon and/or assessed values ascribed to one or more of the Real Properties (any such actions being collectively referred to as “Tax Appeals”) with respect to periods occurring following the Tax year in which the Closing of such Real Properties occurs (such periods, “Purchaser’s Period”), but shall promptly pay over to Sellers the portion of any such Tax refund applicable to periods occurring entirely prior to Purchaser’s Period (such periods, “Sellers’ Period”), in each case after deducting any expenses incurred relating to the applicable Tax Appeal. From and after the Closing Date, subject to the foregoing qualifications, Sellers shall take all actions and execute and deliver all documents Purchaser reasonably requests in order to enable Purchaser to pursue any Tax Appeal solely with respect to Purchaser’s Period at no out-of-pocket expense to Sellers. Subject to the foregoing qualifications, Sellers hereby agree to execute all consents, receipts, instruments and documents which may reasonably be requested in order to facilitate settling any Tax Appeal proceeding commenced by Purchaser in accordance with this paragraph and collecting the amount of any Tax refund with respect thereto. This Section 4.4 shall survive the Closing.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Summit Hotel Properties, Inc.)
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, prorations and other adjustments (the “Closing Statement”) shall be prepared by MRY3 Seller in conformity with the provisions of this Agreement and submitted to Purchaser for review not less than three (3) business days prior to the Effective Timeeach Closing Date. For purposes of prorations, each Assignment Purchaser shall be deemed to have occurred as the owner of 12:01 a.m. the Acquired Assets on the date of applicable Closing Date for such Acquired Assets. In addition to prorations and adjustments that may otherwise be provided for in this Agreement, the Effective Time. The following items are to shall be prorated or adjusted, adjusted (as the case may requirerequires) as of each Closing Date:
(a) All personal property, real estate taxes and special assessments, sales and use taxes levied against the Property which accrue or are attributable to the period prior to the Closing Date shall be prorated as of the Effective Time:
A. Closing Date based on the parties’ respective periods of ownership during such year. Subject to the agreement to prorate such real estate and personal property tax bills, Seller shall be responsible for payment of all installments of real estate taxes and assessments;
B. the rent payable by tenants under the Commercial Leases; provided that rent and all other sums assessments which are due and payable prior to MLP by any tenant but uncollected the Closing and Purchaser shall be responsible for payment of all installments due from and after the Closing Date. Seller shall give Purchaser a credit for taxes and assessments, if any, for which final bills have not been issued as of the Effective Time Closing Date, such credit to be based on the then most recently issued tax bills, in which case such taxes shall not be adjustedreprorated between Seller and Purchaser at the time of issuance of the final bills therefor and payment of any adjustment based on such reproration shall be paid by the party owing the other based on such adjustment within fifteen (15) days after receipt by such party of copies of the applicable bills. Likewise, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums extent Seller is contesting or appealing any real estate tax amount or assessed valuation for any of the Properties for the year of Closing, any refunds or reduction of such taxes or assessments, which, after payment of the out of pocket costs and expenses incurred by Seller in obtaining such refunds or reductions, shall be paid or credited to the party obligated for such taxes or assessments in the same manner and proportions as otherwise provided herein. Any such refund or reduction for any period prior to the Effective Time year of Closing shall belong solely to Seller;
(b) rents paid under the Leases for the calendar month during which the Closing occurs, and the amount of any rents paid to any Seller which are applicable to the period subsequent to the calendar month during which the Closing occurs. Any delinquent rents shall not be prorated at the applicable Closing. Any rents collected by Sellers or Purchaser after a Closing Date shall be applied first to any rents due and payable for the month in which the Closing occurs, then to any then-current calendar months subsequent to the calendar month in which the applicable Closing Date occurs, and then to any rents, including late fees and interest, past due for calendar months prior to the calendar month in which the applicable Closing Date occurs (the “Arrears”). Any rents collected by the applicable Seller after the applicable Closing Date shall be immediately remitted to Purchaser to be applied as set forth above. Any rents collected by Purchaser that are due Seller shall be applied in accordance with the terms of this Section 5(C)(i)(b) after deducting therefrom all reasonable third party expenses incurred by Purchaser in connection with the collection thereof and shall immediately be remitted to MLP if, as and when collectedSeller. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 shall promptly remit to MLP any such rent or other sums paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP Seller shall have the right to xxx pursue and collect (including the commencement or prosecution of litigation) Arrears accruing prior to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Leasethe Closing Date;
C. (c) the full amount then-current balance of the cash security and other deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that , shall be assigned to Purchaser (to or Purchaser shall receive a credit against the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenantsPurchase Price for such amounts);
D. (d) water, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, and any assignable deposits with utility companies specifically allocable to the Properties fuel on hand (said assignable deposits being credited to MLPat cost plus sales tax) (to the extent possible, utility prorations will shall be handled by meter readings on or immediately prior to the Effective Timeapplicable Closing Date; otherwise, all utility charges and xxxxxxxx shall be prorated using the prior month’s bills as of the applicable Closing Date and shall be reprorated promptly upon receipt of actual bills for the period in question); any deposits with utility companies will be transferred to Purchaser and Seller shall receive a credit at the applicable Closing for any such deposits;
E. (e) amounts due and prepayments under the Other Service Contracts or Equipment Leasesbeing assumed by Purchaser;
F. (f) assignable license and permit fees;
G. (g) all accrued non-default interest relating to the applicable Existing Loans. The applicable Sellers shall pay on or prior to the applicable Closing all other fees, costs, charges and other amounts receivable due and payable under the applicable Existing Loans as of the Closing Date (other than principal). Sellers shall receive a credit at the applicable Closing for all amounts that continue to be held in or set aside for escrows or reserves on deposit in connection with the Clay Contracts provided applicable Existing Loans for the benefit of Purchaser, including, without limitation, tax, insurance or rental deposits;
(h) Rent under the Ground Lease shall be prorated for the applicable period that amounts receivable is inclusive of the applicable Closing Date;
(i) Up front “door fees” received by any Seller for services such as cable and internet shall not be prorated;
(j) Penalties and fines assessed against any Property between Sellers and Purchaser based upon the date to which such action or penalty or fine applies (excluding any pertaining to VG Costs [defined below]); and
(k) All other items which are due customarily prorated in transactions similar to the transactions contemplated hereunder and payable to MLP under the Clay Contracts but uncollected which are not otherwise addressed in this Agreement will be prorated as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collectedClosing Date. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time Except with respect to real estate and personal property taxes which are to be reprorated pursuant to the Propertiesfollowing sentence, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time at a Closing shall be re-prorated and finally adjusted as soon as practicable based on information obtained within one hundred twenty (120) days after the Effective Time; otherwiseapplicable Closing Date, such reproration to be completed on or before April 1 of each year with respect to any Closing that was consummated in the prior calendar year, otherwise all prorations shall be final. Real estate, personal property, sales, and use taxes and assessments shall be reprorated within ninety (90) days after the issuance of the actual xxxx therefor.
(ii) Notwithstanding anything to the contrary contained in this Agreement, Sellers shall be responsible for and, at or prior to each Closing, shall pay all amounts due through such Closing for employees’ salaries, vacation pay, withholding and payroll taxes, and other compensation and benefits, and any management fee affecting the applicable Property. The applicable Seller shall terminate (or, with the prior written consent of Purchaser, relocate to another property owned by HTA or one of its subsidiaries) as of each applicable Closing, the employment of all employees who work at the applicable Property. Notwithstanding any provision contained in the Confidentiality Agreement to the contrary, Sellers agree that Purchaser may, in Purchaser’s sole and absolute discretion, hire any or all such terminated employees in accordance with Purchaser’s standard employment practices and policies. Sellers shall severally, but not jointly, to the fullest extent authorized or permitted by applicable law, as now or hereafter in effect, protect, defend, indemnify and hold harmless Purchaser and its affiliates, subsidiaries and designees, if any, and their respective principals, shareholders, directors, officers, partners, agents, employees, successors and assigns (collectively, the “Purchaser Indemnified Parties”) from and against any and all claims, demands, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial action requirements, enforcement actions of any kind, and all reasonable attorneys’ fees, costs and expenses (collectively, “Losses”) incurred by or asserted against any Purchaser Indemnified Party to the extent arising out of employees’ employment with Sellers and the termination of their employment with Sellers, including any amounts or benefits payable under the U.S. Worker Adjustment and Retraining Notification Act or under any other federal, state, local, or other jurisdiction’s worker protection, layoff, plant shutdown or similar law, but such indemnity shall not relate to the employment of such employees by Purchaser (each a “WARN Law,” and collectively, the “WARN Laws”). This indemnity shall survive each Closing (including the Final Closing) and delivery of the deeds and other transfer instruments and shall not be merged therein.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Equity Lifestyle Properties Inc)
Closing Prorations and Adjustments. (a) A rent roll (updated With respect to within 15 days each of the First Pool Closing and the Second Pool Closing, Sellers shall prepare a separate Closing Statement of the prorations and adjustments required by this Agreement with respect to, as applicable, the First Pool Assets and the Second Pool Assets and submit it to Purchaser at least 10 Business Days prior to the Effective Time) and a proposed statement of prorationsapplicable Closing Date, and other adjustments shall which Closing Statement must be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior reasonably acceptable to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective TimePurchaser. The following items are to be prorated or prorated, adjusted, credited or paid directly by Seller in cash (as the case may require, as applicable Seller determines to be appropriate to comply with the applicable Tax rules governing transactions qualifying under Section 1031 of the Effective TimeCode), it being understood that for purposes of prorations and adjustments, the applicable Seller shall be deemed to be the owner of the applicable Property prior to but not including the applicable Closing Date and Purchaser shall be deemed to be the owner of the applicable Property on and following the applicable Closing Date:
A. 4.4.1 real estate and personal property taxes Taxes and assessments;
B. , in each case, with the rent payable by tenants under applicable Seller responsible for Taxes attributable to the Commercial Leases; provided that rent and all other sums which are due and payable to MLP by any tenant but uncollected as portion of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums for the period Tax year which is prior to the Effective Time applicable Closing Date and Purchaser responsible for Taxes attributable to the remainder of the Tax year (which prorations shall be remitted to MLP if, as and when collected. On calculated on the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as basis of the most recent date available Tax xxxx if the current xxxx is not then available) );
4.4.2 sales, occupancy, room, telecommunications, beverage and similar Taxes to which the operations of all such past due but uncollected rent any Hotel is subject (the Taxes in this Section 4.4.2, “Hotel Taxes”), in each case, with the applicable Seller responsible for Hotel Taxes attributable to the portion of the Tax period which is prior to the applicable Closing Date and Purchaser responsible for Hotel Taxes attributable to the portion of the Tax period on or after the applicable Closing Date;
4.4.3 monthly rents and other sums owed by tenants. MRY3 fixed periodic payments under the Leases assigned to Purchaser in accordance with the terms of this Agreement; provided that no proration shall promptly remit to MLP be made of any rent or other revenue item which is overdue as of the applicable Closing Date until such rent or other sums revenue item is actually received, at which time it shall be prorated and paid to Purchaser or the applicable Seller in accordance with the terms of this Agreement. To the extent Purchaser receives rents (including operating expense, Tax and insurance charges payable by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time ) on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days or after the Effective Timeapplicable Closing Date that are not included as accounts receivable subject to Section 4.4.9, MLP such payments, less reasonable costs of collection, shall have be applied first toward the right to xxx to collect same, but payment in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent all rents and other obligations amounts due to Purchaser with respect to periods following the applicable Closing, then allocated for the month of the tenantsapplicable Closing and thereafter the balance applied to delinquent rents or other amounts due to Sellers, with Sellers’ share thereof being delivered to Seller within five days after Purchaser’s receipt of such amounts;
D. 4.4.4 water, electric, telephone and all other utility and fuel charges with respect to (on the Propertiesbasis of the number of days in each applicable xxxx occurring prior to, and on or after, the applicable Closing Date) and fuel on hand (at cost plus sales Tax); provided, however, that any assignable deposits with utility companies specifically allocable to shall remain the Properties (said assignable deposits being credited to MLP) (to property of the extent possible, utility prorations will applicable Seller and shall not be handled by meter readings on the Effective Time)prorated or credited;
E. 4.4.5 amounts due and prepayments payable by the applicable Seller under the Other Service Contracts or Equipment Leasesassigned to Purchaser at the applicable Closing in accordance with the terms of this Agreement;
F. 4.4.6 assignable license and permit fees;
G. 4.4.7 accrued and unpaid tour and travel agent commissions;
4.4.8 the balance (less any contested charges) of the open and unpaid account (“Guest Ledger Account”) for each person who is a guest at a Hotel on the day immediately preceding the applicable Closing Date shall be assigned to Purchaser and prorated between the applicable Seller and Purchaser as follows:
(a) all room revenue posted for all days preceding the applicable Closing Date shall belong to the applicable Seller but shall be paid over to such Seller only as and when actually collected (less reasonable administrative and collection costs), except for the day immediately preceding the applicable Closing Date, which shall be allocated one-half to Purchaser and one-half to the applicable Seller. The applicable Seller shall be responsible for all Taxes and franchise fees for all guest charges preceding the applicable Closing Date, except for the day immediately preceding the applicable Closing Date, which shall be allocated one-half to Purchaser and one-half to the applicable Seller; and
(b) all room revenue posted for all days on and after the applicable Closing Date shall be allocated to Purchaser;
4.4.9 any accounts receivable with respect to a Hotel accruing prior to 11:59 local time (with respect to the applicable Hotel) on the day immediately preceding the applicable Closing Date (“Accounts Receivable”) will not be transferred to Purchaser at such Closing, but rather will be retained by the applicable Seller. Purchaser will deliver to the applicable Seller (and shall promptly instruct the applicable property manager, as its agent, to deliver to the applicable Seller) all checks and other forms of payments received by Purchaser at such Hotel that constitute payment of all or part of any Account Receivable. Payments received from payors owing payment both on an Account Receivable and on an account payable for goods or services rendered on or after the applicable Closing Date will be applied first in accordance with the invoice for which the payment is invoiced (including any designation included in an invoice from internet travel providers or other vendors covering multiple transactions). Any payments from payors that owe amounts receivable on Accounts Receivable and also owe amounts on an account payable for goods or services rendered on or after the applicable Closing Date to Purchaser which do not include such a designation shall be applied first to current amounts (i.e., payments not more than 60 days past due and not being disputed by the payee on Accounts Receivable), then to Purchaser to be applied to amounts owing to Purchaser and any excess shall be applied to any other Accounts Receivable from that payor;
4.4.10 any outstanding deposits or advance payments received and retained by or on behalf of any Seller in connection with any reservation at a Hotel, in the form of a credit against (i.e., a reduction of) the applicable Purchase Price payable to such Seller;
4.4.11 any gift certificate or other writing (other than trade agreements and food and beverage discount coupons) issued by any Seller or manager of a Hotel which entitles the holder or bearer to a credit (whether in a specified dollar amount or for a specified item, such as a room night or meal) to be applied against the usual charge for rooms, meals and/or other goods or services at any Hotel, in the form of a credit against (i.e., a reduction of) the applicable Purchase Price to such Seller;
4.4.12 the outstanding balance of all security deposits under the Leases assigned to Purchaser at the applicable Closing in accordance with the terms of this Agreement;
4.4.13 all cash on hand at each Hotel, with such cash retained by Purchaser and the amount of the same increasing the applicable Purchase Price payable to the Seller that owns the applicable Hotel (Sellers shall perform, or cause to be performed, an accounting of cash on hand at the Property (i.e., in house banks, xxxxx cash, including till money and, to the extent the same are the property of Sellers, vending machines and pay telephones) in the presence of a representative of Purchaser);
4.4.14 any utility deposits with any utility in respect of the operation of a Hotel shall be deemed to have been sold to Purchaser and shall become the property of Purchaser and the amount of the same increasing the applicable Purchase Price to the Seller that owns the applicable Hotel; and
4.4.15 such other items as are usually and customarily prorated between purchasers and sellers of hotel properties in the location of the applicable Real Property. The Purchase Price shall be further adjusted at each Closing in respect of property improvement plans required in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected Replacement Franchise Agreements as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collectedset forth in Section 4.7. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time Except with respect to the Properties, general real estate and personal property Taxes (which shall be entitled to reprorated upon the issuance of the actual bills), any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on at the Effective Time applicable Closing shall be re-prorated reprorated and finally adjusted as soon as practicable on the date that is 365 days after the Effective Timeapplicable Closing Date; otherwise, all prorations shall be final. No later than 350 days after each Closing Date, Purchaser shall prepare and deliver to Sellers a final Closing Statement with respect to such Closing; provided that if Purchaser shall fail to deliver such final Closing Statement within such 350-day period, Sellers may prepare and deliver such statement to Purchaser (and Purchaser shall cooperate fully with Sellers’ efforts to do the same). If within 10 days following the delivery of the final Closing Statement to either Sellers or Purchaser, as applicable, Sellers or Purchaser, as applicable, have/has not given the other written notice of its objection as to the amount of final prorations (which notice shall state the basis of Sellers’ or Purchaser’s objection, as applicable), such amount shall be paid over to Sellers or Purchaser, as applicable, within three Business Days thereof. If Sellers or Purchaser, as applicable, duly give/gives the other such written objection notice, and if Sellers and Purchaser fail to resolve in good faith the issues outstanding with respect to the amount of final prorations within thirty 30 days of the applicable party’s receipt of such written objection notice, Sellers and Purchaser shall submit the issues remaining in dispute to Ernst & Young (the “Independent Accountants”) for resolution. If issues are submitted to the Independent Accountants for resolution, (i) Sellers and Purchaser shall furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that party or its agents and shall be afforded the opportunity to present to the Independent Accountants any material relating to the disputed issues and to discuss the issues with the Independent Accountants; (ii) the determination by the Independent Accountants, as set forth in a notice to be delivered to both Sellers and Purchaser within 60 days of the submission to the Independent Accountants of the issues remaining in dispute, shall be final, binding and conclusive on the parties; and (iii) Sellers and Purchaser will each bear fifty percent (50%) of the fees and costs of the Independent Accountants for such determination. Purchaser shall have the exclusive right to seek adjustments to real estate, ad valorem and/or personal property Tax rates imposed upon and/or assessed values ascribed to one or more of the Real Properties (any such actions being collectively referred to as “Tax Appeals”) with respect to periods occurring following the Tax year in which the Closing of such Real Properties occurs (such periods, “Purchaser’s Period”), but shall promptly pay over to Sellers the portion of any such Tax refund applicable to periods occurring entirely prior to Purchaser’s Period (such periods, “Sellers’ Period”), in each case after deducting any expenses incurred relating to the applicable Tax Appeal. From and after the applicable Closing Date, subject to the foregoing qualifications, Sellers shall take all actions and execute and deliver all documents Purchaser reasonably requests in order to enable Purchaser to pursue any Tax Appeal solely with respect to Purchaser’s Period at no out-of-pocket expense to Sellers. Subject to the foregoing qualifications, Sellers hereby agree to execute all consents, receipts, instruments and documents which may reasonably be requested in order to facilitate settling any Tax Appeal proceeding commenced by Purchaser in accordance with this paragraph and collecting the amount of any Tax refund with respect thereto. This Section 4.4 shall survive each applicable Closing.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Summit Hotel Properties, Inc.)
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to Xxxxxxxx shall prepare the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared draft Closing Statement required by MRY3 in conformity with the provisions of this Agreement not less than three and submit it to Purchaser at least two (32) business days prior to the Effective TimeClosing Date. For purposes of prorations, each Assignment Seller shall be deemed to have occurred as of 12:01 a.m. on the date prepare a schedule of the Effective Timeprorations and adjustments and submit it to Purchaser for Purchaser’s approval two (2) business days prior to the Closing Date together with invoices and documents supporting the prorations and adjustments. The following items are to be prorated prorated, adjusted or adjusted, credited (as the case may require, appropriate) as of the Effective close of business on the Closing Date and shall appear on the final Closing Statement, it being understood that for purposes of prorations and adjustments, Purchaser shall be deemed to be the owner of the Property on the Closing Date, so long as all of Purchaser’s closing obligations, including but not limited to transmittal of funds representing the Purchase Price to Escrowee on or prior to the Closing Time, otherwise the Seller shall be deemed to be the owner of the Property on the Closing Date:
A. 4.4.1 real estate and personal property taxes and assessmentsassessments (on the basis of the most recent ascertainable tax bill if the current bill is not then available);
B. the rent payable by tenants under the Commercial Leases; provided that rent 4.4.2 all paid rents and prepaid rents, if any, as and when collected. Rent and all other sums which are due and payable to MLP Seller by any tenant but uncollected as of the Effective Time Closing (collectively, the “Delinquent Amounts”) shall not be adjustedprorated, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums for the period prior Purchaser shall, after first applying Delinquent Amounts to the Effective Time obligations owing Purchaser for its period of ownership, cause such Delinquent Amounts to be remitted to MLP Seller if, as and when collected. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenantsDelinquent Amounts. MRY3 In the event any Delinquent Amount is inadvertently omitted from such schedule, Seller shall not be deemed to have waived its rights to such Delinquent Amounts. Purchaser shall promptly remit to MLP Seller any such rent or other sums paid by scheduled tenants, notwithstanding Delinquent Amounts provided that a deficiency in the then current total rent due Purchaser is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Leasecreated thereby;
C. 4.4.3 the full amount of unapplied refundable security deposits paid held by Seller under the Commercial Leases, Leases shall be credited to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenantsPurchaser;
D. 4.4.4 water, electric, telephone telephone, trash collection and all other utility charges with respect to the Propertiesand fuel charges, and fuel on hand (at cost plus sales tax); provided, however, that any assignable deposits with utility companies specifically allocable to shall remain the Properties (said assignable deposits being property of Seller and shall not be prorated or credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Timeday immediately preceding the Closing Date);
E. 4.4.5 amounts due and prepayments payable by Seller under the Other assumed Service Contracts but excluding any lump sum or Equipment Leasesup front payments paid with respect thereto for Service Contracts entered into prior to the Closing regardless of whether such up front payments are made pre or post Closing;
F. 4.4.6 assignable license and permit fees;
G. amounts receivable 4.4.7 on or before the Closing Date, Seller shall pay in connection with full all leasing commissions and locator’s and finder’s fees due to leasing or other agents for each residential lease entered into prior to the Clay Contracts provided that amounts receivable Closing Date for which are Seller has received invoices prior to the Closing Date;
4.4.8 reimbursements due and payable by tenants after the Closing with respect to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts costs incurred by Seller prior to collect said past-due amounts and shall cause such amounts receivable Closing for the period prior provision of gas, electricity, water sewer and trash collection to the Effective Time to Property shall be remitted to MLP if, as adjusted and when collected. On the Effective Time, MLP shall deliver to MRY3 prorated on a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in questionpost closing basis; and
I. MLP 4.4.9 other similar items of income and expenses of operation, excluding all Seller employee costs through the Closing Date. Purchaser and Seller shall undertake to re-adjust any item prorated at Closing (or any item omitted therefrom) which proves to be responsible for paying all premiumsinaccurate; provided, fees and other costs associated with however, that neither party shall have any obligation to re-adjust any items (a) after the maintenance expiration of 180 days after Closing (except as to real estate taxes, as to which taxes a readjustment shall occur within 30 days after actual taxes are ascertained) or termination of any insurance policies maintained by MLP prior (b) subject to the Effective Time with respect to time limitations set forth in clause (a), unless such items exceed $5,000.00 in the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be finalaggregate.
Appears in 1 contract
Samples: Real Estate Sale Agreement
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date Each of the Effective Time. following provisions shall survive the Closing:
(i) The following items are to be prorated or adjusted, adjusted (as the case may require, appropriate) as of the Effective Timeclose of business on the Closing Date, it being understood that for purposes of prorations and adjustments, Seller shall be deemed the owner of the Property on such day and Purchaser shall be deemed the owner of the Property as of the day after the Closing Date:
A. (a) real estate and personal property taxes and assessmentsassessments (on the basis of the most recent ascertainable tax xxxx if the current xxxx is not then available);
B. (b) the "minimum" or "base" rent payable by tenants under the Commercial Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Seller by any tenant but uncollected as of the Effective Time Closing shall not be adjustedadjusted or prorated, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing to be remitted to MLP Seller if, as and when collected. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 Purchaser shall include the amount of such rent and other sums in the first bills thereafter submitted to the tenants in question after the Closing, and shall continue to do so for twelve (12) months thereafter. During such twelve (12) month period, Purchaser shall promptly deliver to Seller a copy of each such xxxx submitted to tenants. Purchaser shall promptly remit to MLP Seller any such rent or other sums paid by scheduled tenants, notwithstanding that but only if a deficiency in the then current rent is not thereby created. MRY3 To the extent not set forth on said schedule, reimbursement of real estate taxes payable, common area maintenance, utility charges, water and sewer charges, insurance and association dues and assessments and all other charges to or contributions by tenants under the Leases shall xxxx tenants who owe be prorated in the same manner as provided for "minimum" or "base" rent;
(c) with respect to tenant improvement costs or leasing commissions relating to Leases, or any modification, amendment, restatement or renewal thereto, executed on or after October 16, 1997 (referred to as a "New Lease"), Seller and Purchaser agree that such costs and commissions shall be prorated over the term of any New Lease with Seller being responsible for a portion of such costs and commissions based on the ratio of base rent for periods prior payments received by Seller through the Closing Date to the Effective Time on a monthly basis for six consecutive months following total base rent payable over the Effective Time. For amounts due MLP not collected within thirty (30) days after term of the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial particular New Lease;
C. (d) the full amount of security deposits paid under the Commercial Leases, Leases and unapplied at Closing shall be a credit to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenantsPurchaser;
D. (e) water, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, fuel on hand (at cost plus sales tax), and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Timeday immediately preceding the Closing Date);
E. (f) amounts due and prepayments paid or payable under the Other Contracts or Equipment LeasesService Contracts;
F. (g) assignable license and permit fees;; and
G. (h) other similar items of income and expenses of operation.
(ii) Notwithstanding the foregoing, Seller shall in all events be entitled to retain amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due paid by tenants (referred to herein as "Tenant Reimbursements") for real estate taxes and payable to MLP under the Clay Contracts but uncollected assessments, and common area and operating expenses (collectively, "Tenant Reimbursable Expenses") as of the Effective Time shall Closing to the extent not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause in excess of the actual amount of such amounts receivable Tenant Reimbursable Expenses paid by Seller for the period prior to the Effective Time to be remitted to MLP if, as and when collectedClosing Date. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP Seller shall be responsible for paying all premiums, fees the reconciliation with tenants of Tenant Reimbursements and other costs associated Tenant Reimbursable Expenses for the calendar year 1997. Purchaser agrees to cooperate with the maintenance or termination of Seller in providing any insurance policies maintained by MLP prior information required to complete such reconciliation.
(a) if and to the Effective Time extent that the amount of Tenant Reimbursements collected by Seller for 1997 is less than the amount of Tenant Reimbursable Expenses paid by Seller with respect to 1997 and for which Seller is entitled to recover under the Propertiesterms of the Leases, Purchaser shall: (1) to the extent such amounts have already been collected by Purchaser from the tenants with respect to any period prior to Closing, promptly remit such amounts to Seller but only if the applicable tenant is otherwise current in the payment of all obligations due for the period following Closing; and (2) to the extent such amounts have not yet been collected from tenants, Purchaser shall promptly xxxx the tenants for such amounts and continue to xxxx such tenants for such amounts each month for six (6) months thereafter, and, promptly upon receipt thereof, pay such amounts to Seller; and
(b) if and to the extent that the amount of Tenant Reimbursements collected by Seller for 1997 exceeds the amount of Tenant Reimbursable Expenses paid by Seller with respect to 1997 and for which Seller is entitled to recover under the terms of the Leases, Seller shall remit such excess amounts to Purchaser, provided, that:
(1) Purchaser shall be thereafter obligated to promptly remit the applicable portion to the particular tenants, if any, entitled thereto; and
(2) Purchaser shall indemnify, defend and hold Seller, its beneficiaries, their partners, and shall be entitled to their respective directors, officers, employees and agents, and each of them, harmless from and against any refunds losses, claims, damages and liabilities, including, without limitation, reasonable attorneys' fees and expenses incurred in connection therewith, arising out of or resulting from Purchaser's failure to remit any such amounts to tenants in accordance with the termination provisions hereof.
(iii) For purposes of said policies. The net this Section 4(C), the amount of any prorations expense credited by one party to the other shall be deemed an expense paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other that party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be final.
Appears in 1 contract
Samples: Purchase and Sale Agreement (First Capital Institutional Real Estate LTD 3)
Closing Prorations and Adjustments. Seller shall prepare the Closing Statement of the prorations and adjustments required by this Agreement and submit it to Purchaser at least one (a1) A rent roll (updated to within 15 days business day prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective TimeClosing Date. The following items are to be prorated prorated, adjusted or adjusted, credited (as the case may require, appropriate) as of the Effective Timeclose of business on the Closing Date, it being understood that for purposes of prorations and adjustments, Seller shall be deemed the owner of the Property on such day and Purchaser shall be deemed the owner of the Property as of the day after the Closing Date:
A. 4.4.1 real estate and personal property taxes and assessmentsassessments (on the basis of the most recent ascertainable tax xxxx if the current xxxx is not then available, and in any case, calculated taking into account the 4% discount available for payment of real estate taxes prior to December; provided, however, in the event the Closing takes place after the period of time for the 4% discount has expired, the discount shall be applied only in the event Seller took advantage of such discount when it paid the real estate taxes);
B. 4.4.2 the rent payable by tenants under the Commercial Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Seller by any tenant but uncollected as of the Effective Time Closing shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing to be remitted to MLP Seller if, as and when collected. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 Purchaser shall include the amount of such rent and other sums in the first bills thereafter submitted to the tenants in question after the Closing, and shall continue to do so for nine (9) months thereafter. Purchaser shall promptly remit to MLP Seller any such rent or other sums paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. 4.4.3 the full amount of unapplied security deposits paid held by Seller under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. 4.4.4 water, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, and fuel on hand (at cost plus sales tax); provided, however, that any assignable deposits with utility companies specifically allocable to shall remain the Properties (said assignable deposits being property of the Seller and shall not be prorated or credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Timeday immediately preceding the Closing Date);
E. 4.4.5 amounts due and prepayments under the Other Contracts or Equipment LeasesService Contracts;
F. 4.4.6 assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees 4.4.7 other similar items of income and other costs associated with the maintenance or termination expenses of any insurance policies maintained by MLP prior to the Effective Time operation. Except with respect to the Properties, general real estate and personal property taxes (which shall be entitled to reprorated upon the issuance of the actual bills, if necessary), any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time at Closing shall be re-prorated reprorated and finally adjusted as soon as practicable after the Effective TimeClosing Date; otherwise, subject to the provisions of Section 4.4.2 above, all prorations shall be final. In addition, notwithstanding anything to the contrary contained in this Section 4, Seller reserves the right (i) to meet with governmental officials and to contest any reassessment governing or affecting Seller's obligations under Section 4.4.1 above and (ii) to contest any assessment of the Property or any portion thereof and to attempt to obtain a refund for any taxes previously paid. Seller shall retain all rights with respect to any refund of taxes applicable to any period prior to the Closing Date.
Appears in 1 contract
Closing Prorations and Adjustments. (a) A rent roll (updated With respect to within 15 days the Closing, Sellers shall prepare a separate Closing Statement of the prorations and adjustments required by this Agreement and submit it to Purchaser at least 10 Business Days prior to the Effective Time) and a proposed statement of prorationsClosing Date, and other adjustments shall which Closing Statement must be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior reasonably acceptable to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective TimePurchaser. The following items are to be prorated prorated, adjusted or adjustedcredited (as appropriate), as it being understood that for purposes of prorations and adjustments, the case may require, as applicable Seller shall be deemed to be the owner of the Effective Timeapplicable Property prior to but not including the Closing Date and Purchaser shall be deemed to be the owner of the applicable Property on and following the Closing Date:
A. 4.4.1 real estate and personal property taxes Taxes and assessments;
B. , in each case, with the rent payable by tenants under applicable Seller responsible for Taxes attributable to the Commercial Leases; provided that rent and all other sums which are due and payable to MLP by any tenant but uncollected as portion of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums for the period Tax year which is prior to the Effective Time Closing Date and Purchaser responsible for Taxes attributable to the remainder of the Tax year (which prorations shall be remitted to MLP if, as and when collected. On calculated on the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as basis of the most recent date available Tax bxxx if the current bxxx is not then available) );
4.4.2 sales, occupancy, room, telecommunications, beverage and similar Taxes to which the operations of all such past due but uncollected rent any Hotel is subject (the Taxes in this Section 4.4.2, “Hotel Taxes”), in each case, with the applicable Seller responsible for Hotel Taxes attributable to the portion of the Tax period which is prior to the Closing Date and Purchaser responsible for Hotel Taxes attributable to the portion of the Tax period on or after the Closing Date;
4.4.3 monthly rents and other sums owed by tenants. MRY3 fixed periodic payments under the Leases assigned to Purchaser in accordance with the terms of this Agreement; provided that no proration shall promptly remit to MLP be made of any rent or other revenue item which is overdue as of the Closing Date until such rent or other sums revenue item is actually received, at which time it shall be prorated and paid to Purchaser or the applicable Seller in accordance with the terms of this Agreement. To the extent Purchaser receives rents (including operating expense, Tax and insurance charges payable by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time ) on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days or after the Effective TimeClosing Date that are not included as accounts receivable subject to Section 4.4.9, MLP such payments, less reasonable costs of collection, shall have be applied first toward the right to xxx to collect same, but payment in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent all rents and other obligations amounts due to Purchaser with respect to periods following the Closing, then allocated for the month of the tenantsClosing and thereafter the balance applied to delinquent rents or other amounts due to Sellers, with Sellers’ share thereof being delivered to Seller within five days after Purchaser’s receipt of such amounts;
D. 4.4.4 water, electric, telephone and all other utility and fuel charges with respect to (on the Propertiesbasis of the number of days in each applicable bxxx occurring prior to, and on or after, the Closing Date) and fuel on hand (at cost plus sales Tax); provided, however, that any assignable deposits with utility companies specifically allocable to shall remain the Properties (said assignable deposits being credited to MLP) (to property of the extent possible, utility prorations will applicable Seller and shall not be handled by meter readings on the Effective Time)prorated or credited;
E. 4.4.5 amounts due and prepayments payable by the applicable Seller under the Other Service Contracts or Equipment Leasesassigned to Purchaser at the Closing in accordance with the terms of this Agreement;
F. 4.4.6 assignable license and permit fees;
G. 4.4.7 accrued and unpaid tour and travel agent commissions;
4.4.8 the balance (less any contested charges) of the open and unpaid account (“Guest Ledger Account”) for each person who is a guest at a Hotel on the day immediately preceding the Closing Date shall be assigned to Purchaser and prorated between the applicable Seller and Purchaser as follows:
(a) all room revenue posted for all days preceding the Closing Date shall belong to the applicable Seller but shall be paid over to such Seller only as and when actually collected (less reasonable administrative and collection costs), except for the day immediately preceding the Closing Date, which shall be allocated one-half to Purchaser and one-half to the applicable Seller. The applicable Seller shall be responsible for all Taxes and franchise fees for all guest charges preceding the Closing Date, except for the day immediately preceding the Closing Date, which shall be allocated one-half to Purchaser and one-half to the applicable Seller; and
(b) all room revenue posted for all days on and after the Closing Date shall be allocated to Purchaser;
4.4.9 any accounts receivable with respect to a Hotel accruing prior to 11:59 local time (with respect to the applicable Hotel) on the day immediately preceding the Closing Date (“Accounts Receivable”) will not be transferred to Purchaser at the Closing, but rather will be retained by the applicable Seller. Purchaser will deliver to the applicable Seller (and shall promptly instruct the applicable property manager, as its agent, to deliver to the applicable Seller) all checks and other forms of payments received by Purchaser at such Hotel that constitute payment of all or part of any Account Receivable. Payments received from payors owing payment both on an Account Receivable and on an account payable for goods or services rendered on or after the Closing Date will be applied first in accordance with the invoice for which the payment is invoiced (including any designation included in an invoice from internet travel providers or other vendors covering multiple transactions). Any payments from payors that owe amounts receivable on Accounts Receivable and also owe amounts on an account payable for goods or services rendered on or after the Closing Date to Purchaser which do not include such a designation shall be applied first to current amounts (i.e., payments not more than 60 days past due and not being disputed by the payee on Accounts Receivable), then to Purchaser to be applied to amounts owing to Purchaser and any excess shall be applied to any other Accounts Receivable from that payor;
4.4.10 any outstanding deposits or advance payments received and retained by or on behalf of any Seller in connection with any reservation at a Hotel, in the form of a credit against (i.e., a reduction of) the Purchase Price payable to such Seller;
4.4.11 any gift certificate or other writing (other than trade agreements and food and beverage discount coupons) issued by any Seller or manager of a Hotel which entitles the holder or bearer to a credit (whether in a specified dollar amount or for a specified item, such as a room night or meal) to be applied against the usual charge for rooms, meals and/or other goods or services at any Hotel, in the form of a credit against (i.e., a reduction of) the Purchase Price to such Seller;
4.4.12 the outstanding balance of all security deposits under the Leases assigned to Purchaser at the Closing in accordance with the terms of this Agreement;
4.4.13 all cash on hand at each Hotel, with such cash retained by Purchaser and the amount of the same increasing the Purchase Price payable to the Seller that owns the applicable Hotel (Sellers shall perform, or cause to be performed, an accounting of cash on hand at the Property (i.e., in house banks, pxxxx cash, including till money and, to the extent the same are the property of Sellers, vending machines and pay telephones) in the presence of a representative of Purchaser);
4.4.14 any utility deposits with any utility in respect of the operation of a Hotel shall be deemed to have been sold to Purchaser and shall become the property of Purchaser and the amount of the same increasing the Purchase Price to the Seller that owns the applicable Hotel; and
4.4.15 such other items as are usually and customarily prorated between purchasers and sellers of hotel properties in the location of the applicable Real Property. The Purchase Price shall be further adjusted at the Closing in respect of property improvement plans required in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected Replacement Franchise Agreements as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collectedset forth in Section 4.7. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time Except with respect to the Properties, general real estate and personal property Taxes (which shall be entitled to reprorated upon the issuance of the actual bills), any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on at the Effective Time Closing shall be re-prorated reprorated and finally adjusted as soon as practicable on the date that is 365 days after the Effective TimeClosing Date; otherwise, all prorations shall be final. No later than 350 days after the Closing Date, Purchaser shall prepare and deliver to Sellers a final Closing Statement with respect to the Closing; provided that if Purchaser shall fail to deliver such final Closing Statement within such 350-day period, Sellers may prepare and deliver such statement to Purchaser (and Purchaser shall cooperate fully with Sellers’ efforts to do the same). If within 10 days following the delivery of the final Closing Statement to either Sellers or Purchaser, as applicable, Sellers or Purchaser, as applicable, have/has not given the other written notice of its objection as to the amount of final prorations (which notice shall state the basis of Sellers’ or Purchaser’s objection, as applicable), such amount shall be paid over to Sellers or Purchaser, as applicable, within three Business Days thereof. If Sellers or Purchaser, as applicable, duly give/gives the other such written objection notice, and if Sellers and Purchaser fail to resolve in good faith the issues outstanding with respect to the amount of final prorations within thirty 30 days of the applicable party’s receipt of such written objection notice, Sellers and Purchaser shall submit the issues remaining in dispute to Ernst & Young (the “Independent Accountants”) for resolution. If issues are submitted to the Independent Accountants for resolution, (i) Sellers and Purchaser shall furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that party or its agents and shall be afforded the opportunity to present to the Independent Accountants any material relating to the disputed issues and to discuss the issues with the Independent Accountants; (ii) the determination by the Independent Accountants, as set forth in a notice to be delivered to both Sellers and Purchaser within 60 days of the submission to the Independent Accountants of the issues remaining in dispute, shall be final, binding and conclusive on the parties; and (iii) Sellers and Purchaser will each bear fifty percent (50%) of the fees and costs of the Independent Accountants for such determination. Purchaser shall have the exclusive right to seek adjustments to real estate, ad valorem and/or personal property Tax rates imposed upon and/or assessed values ascribed to one or more of the Real Properties (any such actions being collectively referred to as “Tax Appeals”) with respect to periods occurring following the Tax year in which the Closing of such Real Properties occurs (such periods, “Purchaser’s Period”), but shall promptly pay over to Sellers the portion of any such Tax refund applicable to periods occurring entirely prior to Purchaser’s Period (such periods, “Sellers’ Period”), in each case after deducting any expenses incurred relating to the applicable Tax Appeal. From and after the Closing Date, subject to the foregoing qualifications, Sellers shall take all actions and execute and deliver all documents Purchaser reasonably requests in order to enable Purchaser to pursue any Tax Appeal solely with respect to Purchaser’s Period at no out-of-pocket expense to Sellers. Subject to the foregoing qualifications, Sellers hereby agree to execute all consents, receipts, instruments and documents which may reasonably be requested in order to facilitate settling any Tax Appeal proceeding commenced by Purchaser in accordance with this paragraph and collecting the amount of any Tax refund with respect thereto. This Section 4.4 shall survive the Closing.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (American Realty Capital Hospitality Trust, Inc.)
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement Statements of prorations, prorations and other adjustments shall be prepared by MRY3 Seller in conformity with the provisions of this Agreement and submitted to Purchaser for review and approval not less than three (3) business days prior to the Effective TimeClosing Date. For purposes of prorations, each Assignment Purchaser shall be deemed to have occurred as the owner of 12:01 a.m. the Property on the date of Closing Date. In addition to prorations and other adjustments that may otherwise be provided for in this Agreement, the Effective Time. The following items are to be prorated or adjusted, as the case may require, as of the Effective TimeClosing Date:
A. (i) If not paid by the Tenant pursuant to the Lease, real estate and personal property taxes and assessments;
B. assessments (initially prorated on the rent payable by tenants under the Commercial Leases; provided that rent and all other sums which are due and payable to MLP by any tenant but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as basis of the most recent date available) ascertainable xxxx, but subject to reproration upon issuance of the actual xxxx therefor to effectuate the actual proration), provided that Seller shall pay prior to Closing or give Purchaser a credit at Closing for, the amount of all installments of special assessments levied prior to Closing and which are payable after Closing;
(ii) Seller and Purchaser shall prorate the rent, charges and other amounts payable by Tenant to Seller for the month of Closing, including expense “pass-throughs” which are due for the month of Closing. With respect to rent, charges and other amounts payable by Tenant to Seller (including expense “pass-throughs”) for months prior to the month of Closing (“Delinquent Amounts”), Purchaser shall make a commercially reasonable good faith effort to collect such past due Delinquent Amounts for a period of three months following Closing), but uncollected Purchaser shall not be required to take legal action with respect to Delinquent Amounts. At Closing, Seller shall deliver to Purchaser a schedule of all Delinquent Amounts. Notwithstanding the foregoing or any direction from Tenant to the contrary, rental and other payments received by Purchaser from Tenant shall first be applied toward Purchaser’s actual out-of-pocket costs of collection, then toward the payment of rent and other sums charges owed by tenants. MRY3 shall promptly remit to MLP any such rent or other sums paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent Purchaser for periods prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective TimeClosing, MLP and any excess monies received shall be applied toward the payment of Delinquent Amounts. Purchaser may not waive any Delinquent Amounts or modify a Lease so as to reduce amounts or charges owed under Lease for any period in which Seller is entitled to receive a share of charges or amounts, without first obtaining the written consent of Seller and Seller shall have the right to xxx collect same after Closing. Purchaser shall make year-end reconciliations of reimbursements owed by Tenant under the Lease to collect the landlord thereunder of the Tenant’s share of property taxes and assessments, insurance premiums, common area maintenance and other expenses related to the operation of the Property for the calendar year 2015 (collectively, “Reimbursable Tenant Expenses”). In order to enable Purchaser to make any year-end reconciliations of Reimbursable Tenant Expenses for calendar year 2015, Seller shall deliver to Purchaser, in writing, within sixty (60) days after the Closing Date, the Reimbursable Tenant Expenses actually paid or incurred by Seller for the portion of the calendar year 2015 during which Seller owned the Property (“Seller’s Actual Reimbursable Tenant Expenses”) and the Tenant reimbursements for such Reimbursable Tenant Expenses actually paid to Seller by Tenant for the portion of the calendar year 2015 during which Seller owned the Property (“Seller’s Actual Tenant Reimbursements”). On or before March 31, 2016, Purchaser shall deliver to Seller a reconciliation statement (the “Reconciliation Statement”) setting forth (i) the Actual Reimbursable Tenant Expenses paid or incurred during calendar year 2015, (ii) the Actual Tenant Reimbursements actually paid in calendar year 2015, and (iii) a calculation of the difference between the two (i.e., establishing that the Actual Reimbursable Tenant Expenses were either more or less than the Actual Tenant Reimbursements for the calendar year 2015), with Purchaser utilizing the information delivered to Purchaser by Seller related to the period of the calendar year 2015 which is prior to the Closing Date. Any amount due Seller pursuant to the foregoing calculation (in the event Seller’s Actual Tenant Reimbursements for the period January 1 to the date prior to Closing are less than Seller’s Actual Reimbursable Tenant Expenses for the same period) or Purchaser (in the event the Actual Tenant Reimbursements are more than the Actual Reimbursable Tenant Expenses), as the case may be, shall be paid by Purchaser to Seller within fourteen (14) business days after Purchaser has collected such sums from any tenant who owes same, but or if Seller owes Purchaser for any such sum, Seller shall pay to Purchaser within fourteen (14) business days after delivery of the Reconciliation Statement to Seller, all such sums owed by Seller to Purchaser. If Purchaser is paid any such amount by Seller, Purchaser thereafter shall be obligated to promptly remit the applicable portion to the Tenant entitled thereto. If Purchaser has transferred its interest in no event may MLP seek the Property to evict any tenant a successor-in-interest or terminate any Commercial Leaseassignee prior to such date, then, on or before the transfer of its interest in the Property, Purchaser shall (i) in writing expressly obligate such successor-in-interest or assignee to be bound by the provisions of this Section, and (ii) deliver written notice of such transfer to Seller, and thereafter Seller shall make the deliveries specified above to Purchaser’s successor-in-interest or assignee. Seller’s Reconciliation Statement shall be final and binding for purposes of this Contract;
C. (iii) the full amount of the security deposits deposit, paid under the Commercial LeasesLease, to the extent unappliedif any, and not theretofore applied, together with interest thereon if to the extent any interest is required by law or otherwise; provided that (otherwise to be paid to the extent permitted Tenant, shall be delivered by applicable law) MLP Seller to Purchaser on the date of Closing. Prior to the Closing, Seller shall have not apply the right to apply security deposits, if any, against delinquent rents and other obligations of the tenantsdeposit;
D. (iv) water, electric, telephone and all other utility and fuel charges with respect not paid by the Tenant under the Lease shall be prorated ratably on the basis of the last ascertainable bills (and reprorated upon receipt of the actual bills or invoices) unless final meter readings and final invoices can be obtained. To the extent practicable, if Tenant does not pay the water, electric, telephone and other utility charges pursuant to the PropertiesLease, and any assignable deposits with utility companies specifically allocable Seller shall cause meters for utilities to be read not more than one (1) business day prior to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time)date of Closing;
E. (v) amounts due and prepayments paid or owing under the Other Contracts or Equipment Leasesany Assumed Service Contracts, if any;
F. (vi) assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date availablevii) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; anditems;
I. MLP (viii) Seller shall be responsible for paying all premiums, fees leasing commissions and other leasing costs associated with the maintenance or termination of any insurance policies maintained by MLP due and payable prior to the Effective Time Date with respect to the PropertiesLease. Purchaser shall be responsible for all leasing commissions and other leasing costs attributable to the Lease or the renewal, extension or expansion of the Lease due and payable after the Effective Date. If Seller has, prior to the Closing, paid any leasing commissions or other leasing costs which are Purchaser’s responsibility hereunder, Seller will receive a credit for same from Purchaser at the Closing. Purchaser shall have no obligation to pay for any leasing commissions in connection with the initial terms of the Lease. This subsection shall survive Closing;
(ix) The cost of all Tenant improvement work owed or to be owed in connection with the current term of the Lease existing as of the date hereof (collectively “Seller TI Work Payable”) shall be the responsibility of Seller, and shall be entitled paid in full by Seller at or prior to any refunds in connection with Closing. To the termination extent not completed prior to Closing, Purchaser shall agree to complete such Seller TI Work Payable, and to pay the cost of said policies. The net such Tenant improvement work, and the amount of any prorations the Purchase Price due Seller hereunder shall be reduced by the cost of such Seller TI Work Payable. In the event the costs of any portion of the Seller TI Work Payable is not determinable as of the Closing Date, the amount of the Purchase Price otherwise to be paid in cash on hereunder shall be reduced by Purchaser and Seller making a reasonable estimate of the Effective Time to MLP costs of such Seller TI Work Payable (the “Holdback”). To the extent the final costs paid by Purchaser for Seller TI Work Payable is more or MRY3less than the Holdback, Purchaser and Seller agree that the Purchase Price will be increased or decreased, as the case may be, and Seller shall pay Purchaser the amount by which the other partysum of the Holdback is less than the actual cost of the Seller TI Work Payable and Purchaser will pay Seller the amount by which the Holdback is more than the actual cost of the TI Work Payable; and
(x) All obligations to pay Tenant improvement work owed or to be owed in connection with extension or renewal terms of the Lease shall be paid by Purchaser when due after the Closing Date without an adjustment to the Purchase Price. Any Notwithstanding the foregoing, to the extent any portion of the term of the Lease for which Purchaser shall pay the Tenant improvement cost in connection therewith occurs prior to the Closing Date, the amount of the Purchase Price will be reduced by a pro rata share of such cost based upon the percentage of such term (exclusive of any renewal options) which occurs prior to the Closing Date. Except with respect to general real estate and personal property taxes (which shall be reprorated upon the issuance of the actual bills, if necessary), and expense “pass throughs” (which shall be trued up within the sixty (60) day period set forth above) any proration which must be estimated on the Effective Time at Closing shall be re-prorated reprorated and finally adjusted as soon as practicable after the Effective Time; otherwiseClosing Date with any refunds payable to Seller or Purchaser to be made as soon as practicable after such amounts are determined, otherwise all prorations shall be final. Amounts on deposit with utility companies shall be disclosed to Purchaser within ten (10) days after the Effective Date and shall not be prorated; provided, however, that promptly following the Closing, Purchaser shall substitute its own deposit for any amounts on deposit with utility companies and shall refund to Seller any portion of Seller’s deposit which is refunded by the utility company. The rights, covenants and obligations contained in this Paragraph 5(c) shall survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, prorations and other adjustments shall be prepared by MRY3 Seller (for each Property being conveyed at a Closing) in conformity with the provisions of this Agreement and submitted to Purchaser for review and approval not less than five (5) Business Days prior to the Initial Closing Date and three (3) business days Business Days prior to any Subsequent Closing Date (the Effective Time“Closing Statement”). For purposes of prorations, each Assignment Purchaser shall be deemed to have occurred as the owner of 12:01 a.m. the respective Property on the date of Closing Date. In addition to other adjustments that may be provided for in this Agreement, the Effective Time. The following items with respect to each Property are to be prorated or adjusted, as the case may require, for each Property as of the Effective TimeClosing Date for such Property:
A. (a) real estate and personal property taxes and assessments (initially prorated on the basis of 100% of the most recent ascertainable bxxx, but subject to reproration upon issuance of the actual bills therefor to effectuate the actual proration); to the extent that Seller has escrowed any real estate taxes with the Landlord under a Lease, Seller shall assign all rights under such escrow to Purchaser and, provided the amount so escrowed is confirmed by such Landlord in writing or is confirmed by other reasonably satisfactory substantiation, Seller shall be credited accordingly in connection with the proration of taxes or assessments;
B. . Real estate taxes shall be apportioned on the rent basis of the fiscal period for which assessed. If as of the applicable Closing Date any of the Properties or any portion thereof shall be affected by any special or general assessments which are or may become payable by tenants under in installments of which the Commercial Leases; provided that rent first installment is then a lien and all other sums has become payable, Seller shall be responsible to pay the unpaid installments of such assessments which are due prior to the applicable Closing Date and payable Purchaser shall be responsible to MLP by any tenant but uncollected pay the installments which are due on or after the applicable Closing Date and Purchaser or Seller shall make a payment to the other to the extent necessary so that the total amount of such special or general assessment is apportioned as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause provided above;
(b) the rent and other sums sums, including, without limitation, monthly installments payable by Seller on account of operating costs and taxes, payable by Seller under the Leases. Any percentage rent owed under any Lease with respect to any time period prior to the applicable Closing shall be paid by Seller. To the extent that Seller has paid to or escrowed with the Landlord under any Lease any monthly estimate of taxes or other operating expenses, and the Landlord refunds or credits to Purchaser or its designee (after the applicable Closing) a portion of such estimated or escrowed payments resulting from a reconciliation of the actual expenses or taxes for the period prior to the Effective Time to be remitted to MLP ifsuch Closing, as and when collected. On the Effective Time, MLP Purchaser shall deliver to MRY3 Seller its pro-rata share of such refund within twenty (20) days of receipt of said refund. In the event that a schedule Landlord is owed any additional funds as a result of any deficiency shown in such reconciliation for the period of time prior to the applicable Closing, Seller shall deliver to Purchaser the deficient funds within twenty (prepared by MLP as 20) days of receipt of notice from Purchaser, subject to any rights of the most recent date availabletenant under the Lease to contest such determination by the Landlord (which rights shall be retained and shall be exercisable by Seller) with respect to any reconciliation for the period of all such past time prior to the applicable Closing. Seller shall retain, subsequent to any Closing with respect to a Leased Property, any other rights, claims and remedies against the Landlord with respect to any refunds, rebates or credits due but uncollected rent and other sums owed by tenants. MRY3 shall promptly remit from the Landlord to MLP Seller (as a tenant under the Lease) with respect to any such rent or other sums paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time on a monthly basis Closing Date (including, without limitation, audit rights and rights to claim adjustments from the Landlord for six consecutive months following overcharged amounts of additional rent under the Effective Time. For Lease), and Purchaser shall promptly pay to Seller any such amounts due MLP not collected within thirty received by (30or credited for the benefit of) days Purchaser after the Effective Time, MLP shall have Closing Date and attributable to periods prior to the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial LeaseClosing Date;
C. the full amount of (c) security deposits paid under the Commercial Leases, and not theretofore applied, shall be credited by Purchaser to Seller on the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenantsClosing Date;
D. (d) water, electric, telephone and all other utility and fuel charges with respect shall be prorated ratably on the basis of the last ascertainable bills (and reprorated upon receipt of the actual bills or invoices) unless final meter readings and final invoices can be obtained. To the extent practicable, Seller shall cause meters for utilities to be read not more than ten (10) Business Days prior to the Properties, and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time)applicable Closing Date;
E. amounts due and prepayments under the Other Contracts or Equipment Leases;
F. (e) assignable license and permit fees;
G. amounts receivable in connection (f) deposits made by Seller with utility companies, Governmental Entities or any other person, which deposits shall be assigned to Purchaser at Closing and shall be credited to Seller, provided, however, that Seller shall have received written notice from the Clay Contracts provided party holding such deposits confirming the amount of such deposits and stating that amounts receivable no default has occurred by Seller and no other condition has occurred which are due and payable to MLP under the Clay Contracts but uncollected as would prohibit all or any portion of such deposit from being refunded (or such other substantiation of the Effective Time foregoing facts reasonably satisfactory to Purchaser). If Seller is unable to obtain such a notice or provide such other substantiation, amounts on deposit with utility companies shall not be adjustedprorated; provided, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period however, that prior to the Effective Time to be remitted to MLP ifClosing, as Purchaser shall substitute its own deposit for any amounts on deposit with utility companies and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and Seller shall be entitled to any refunds in connection with arrange for a refund of Seller’s deposit from such utility companies;
(g) the termination rent and other sums, including, without limitation, monthly installments payable by subtenants on account of said policies. The net amount of any prorations operating costs and taxes payable under the Approved Subleases, subject to Section 4.5 below;
(h) security deposits paid under the Approved Subleases, and not theretofore applied, shall be paid in cash credited by Seller to Purchaser on the Effective Time applicable Closing Date; and
(i) other operating expenses and any other customarily apportioned items. Except with respect to MLP or MRY3general real estate taxes (which shall be reprorated upon the issuance of the actual bills, as the case may beif necessary), by the other party. Any any proration which must be estimated on the Effective Time at a Closing shall be re-prorated reprorated and finally adjusted as soon as practicable after the Effective Timeapplicable Closing, with any refunds payable to Seller or Purchaser to be made as soon as practicable; otherwise, otherwise all prorations shall be final. The provisions of this Section 4.3 shall survive the Closings.
Appears in 1 contract
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, adjusted (as the case may require, appropriate) as of the Effective TimeClosing Date, it being understood that for purposes of prorations and adjustments, Seller shall be deemed the owner of the Property on the day preceding the Closing Date and Purchaser shall be deemed the owner of the Property on the Closing Date; provided, however, that if Escrowee ----------------- receives the Purchase Price in immediately available funds after 2:00 p.m., Chicago time on the Closing Date, then, for purposes of prorations and adjustments, Seller shall be deemed the owner of the Property on the Closing Date and Purchaser shall be deemed the owner of the Property on the day after the Closing Date:
A. (a) (i) real estate and personal property taxes and assessmentsassessments (provided that, if the current xxxx is not available, proration shall be made initially on the basis of the most recent Notice of Proposed Property Taxes and Non Ad Valorem Taxes (as to assessed valuation) and on the basis of the most recent available tax xxxx (as to the tax rate) ) and, in all events, subject to reproration as described in Section 4.C. (iv));
B. (ii) Notwithstanding the foregoing, Seller shall receive a credit for any real estate tax reimbursement to be paid by Citibank, General Cinema, Marshalls, Publix, TJ Maxx/Sports Authority and Walgreens after closing, to the extent such reimbursement relates to taxes accrued or assessed for the period prior to Closing;
(b) the "minimum" or "base" rent payable by tenants under the Commercial Leases ("Base Rent") and Operating --------- Expense Reimbursements (as defined in Section 4(c)(ii)) payable by tenants under the Leases; provided provided, however, that rent and all other sums which are due and payable to MLP by any tenant Seller as of Closing but uncollected as of the Effective Time Closing shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing to be remitted to MLP Seller if, as and when collected, subject, however, to the remaining provisions of this Section 4.C.(i)(b). On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP the "Closing ------- Delinquency Schedule") certified as true, correct -------------------- and complete to the Actual Knowledge of the most recent date available) Seller of all such past due but uncollected rent and other sums owed by tenants, (collectively, the "Past Due -------- Rents"). MRY3 Purchaser shall ----- include the amount of the Past Due Rents in the first bills thereafter submitted to the tenants in question after the Closing, and shall continue to do so for six (6) months thereafter and shall send copies of such invoices to Seller simultaneously. Purchaser shall promptly remit to MLP Seller any such rent or other sums Past Due Rents paid by scheduled tenantstenants set forth on the Closing Delinquency Schedule, notwithstanding that a deficiency but only if the applicable tenants are otherwise current in the then current payment of all obligations due for the period following Closing. The amount of any Past Due Rents to be paid by any tenant shall be paid in accordance with such tenant's Lease as now existing (Purchaser hereby covenanting and agreeing not to modify the Leases after Closing to change the date and/or method for payment of amounts attributable to the period prior to Closing. Prepaid rent (i.e., rent that is thereby created. MRY3 shall xxxx tenants who owe rent for periods received by Seller prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty entire period to which such rent relates) shall be credited to Purchaser at Closing.
(30c) days after the Effective Time, MLP Percentage rent shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. the full amount of security deposits paid under the Commercial Leases, be prorated as follows: to the extent unappliednot set forth on the Closing Delinquency Schedule, together with interest thereon if required "percentage" or "overage" rent, shall be prorated as follows: percentage rent as and when collected shall be prorated based upon each party's pro rata share of the annual sales for the Tenant's fiscal year (for determination of sales under the Lease) in which Closing occurs for each party's respective period of ownership, after taking into account each party's proportionate share of the breakpoint and/or any recaptures for calculating percentage rent under such Lease. Prorations shall be on the basis of a per diem (number of days) method of allocation. Upon receipt by law or otherwise; provided that (Purchaser, Purchaser shall furnish to Seller copies of all sales reports from tenants relative to the extent permitted percentage rent, including, without limitation, all sales reports with respect to any tenants whose lease years have expired as of the Closing but whose sales reports were not available on Closing and sales reports of any tenants whose lease years expire after the Closing, and the amount of any percentage rent shall be paid in accordance with such tenant's Lease as now existing, and Purchaser shall pay to Seller a pro rata portion of such percentage rent, calculated in the manner provided above, promptly after the date when such rent is received from the tenant.
(d) With respect to tenant improvement costs and/or allowances or leasing commissions relating to "New --- Leases" (as hereinafter defined) approved or ------ deemed approved by applicable law) MLP Purchaser pursuant to this Agreement, Seller and Purchaser agree that such costs, rent abatements, allowances and commissions shall be prorated over the term of any such New Lease with Seller being responsible for a portion of such costs, rent abatements, allowances and commissions based on the ratio of Base Rent payments received by Seller through the Closing Date to the total Base Rent payable over the term of the particular New Lease and, in the event that Seller has paid or incurred such costs, rent abatements, allowances and/or commissions prior to Closing, Purchaser shall reimburse Seller at Closing for the amount of any such costs, allowances and/or commissions paid by Seller, based on the above-described proration; Purchaser shall have no liability with respect to tenant improvements costs and/or allowances or leasing commissions with respect to Leases entered into prior to the right date hereof except for costs incurred in connection with unexercised options to apply security depositsextend, renew or expand, which costs shall be prorated over the applicable term of the renewal, extension or expansion in the same manner described above for New Leases.
(e) the amount of the Security Deposits held by Seller as of the Clos ing Date, if any, with Purchaser receiving a credit at Closing against delinquent rents and other obligations the Purchase Price in the amount of the tenantsSecurity Deposits held by Seller as of the Closing Date, if any;
D. (f) water, sewer, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, fees and use charges, fuel on hand (at cost plus sales tax) and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Timeday immediately preceding the Closing Date);
E. (g) amounts due and prepayments under the Other Service Contracts or Equipment Leases;
F. assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared assumed by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in questionPurchaser hereunder; and
I. MLP shall be responsible for paying all premiums, fees (h) other similar items of income and other costs associated with the maintenance or termination expenses of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be finaloperation.
Appears in 1 contract
Samples: Real Estate Sale Agreement (First Capital Income & Growth Fund Series Xii)
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, adjusted (as the case may require, appropriate) as of the Effective Timeclose of business on the day immediately preceding the Closing Date, it being understood that for purposes of prorations and adjustments, Seller shall be deemed the owner of the Property on such day and Purchaser shall be deemed the owner of the Property as of the Closing Date:
A. (a) real estate and personal property taxes and assessmentsassessments (on the basis of the most recent ascertainable tax bxxx if the current bxxx is not then available);
B. (b) the "minimum" or "base" rent payable by tenants under the Commercial Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Seller by any tenant but uncollected as of the Effective Time Closing shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing to be remitted to MLP Seller if, as and when collected. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 Purchaser shall include the amount of such rent and other sums in the first bills thereafter submitted to the tenants in question after the Closing, and shall continue to do so for six (6) months thereafter. Purchaser shall promptly deliver to Seller a copy of each such bxxx submitted to tenants. Purchaser shall promptly remit to MLP Seller any such rent or other sums paid by scheduled tenants, notwithstanding that but only if a deficiency in the then current rent is not thereby created. MRY3 To the extent not set forth on said schedule, percentage or overage rent and reimbursement of real estate taxes payable, common area maintenance, mall maintenance, utility charges, water and sewer charges, insurance and merchant's association dues and assessments and all other charges to or contributions by tenants under the Leases shall xxxx be prorated as follows: with respect to percentage rents, and upon receipt by Purchaser, Purchaser shall furnish to Seller copies of all sales reports from tenants who owe relative thereto, including, without limitation, all sales reports with respect to any tenants whose lease years have expired as of the Closing but whose sales reports were not available on Closing and sales reports of any tenants whose lease year expires after the Closing, and the amount of any rents (including, without limitation, percentage rents), reimbursement or contribution to be made by any tenant shall be made in accordance with such tenant's Lease as now existing and Purchaser shall promptly pay to Seller a pro-rata portion of such rents, reimbursement or contribution, based upon apportionment being made as of the Closing Date, promptly after the date when such rents, reimbursement or contribution is received from the tenant;
(c) Subject to the following sentence, with respect to tenant improvement costs or leasing commissions relating to Leases, or any modification, amendment, restatement or renewal thereto, executed after March 1, 1997 (referred to as a "New Lease"), Seller and Purchaser agree that such costs and commissions shall be prorated over the term of any New Lease with Seller being responsible for a portion of such costs and commissions based on the ratio of base rent for periods payments received by Seller through the Closing Date to the total base rent payable over the term of the particular New Lease. A list of such New Leases that were entered into between March 1, 1997, and the date of this Agreement, is attached hereto as Exhibit J. Exhibit J shall be updated as of the last day of, and prior to the Effective Time expiration of, the Review Period, as well as on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty Closing Date.
(30d) days after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. the full amount of security deposits paid under the Commercial Leases, Leases and card key deposits (and with respect to the extent unapplied, together with interest thereon if required by law or otherwise; provided tenants that (to the extent permitted by applicable law) MLP shall have the right to apply posted letters of credit as security deposits, if anySeller agrees to cooperate with Purchaser for a period of six (6) months after Closing to have such letters of credit transferred to Purchaser's name, against delinquent rents and other obligations of the tenantsbut any material expense for any such transfer shall be borne by Purchaser);
D. (e) water, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, fuel on hand (at cost plus sales tax), and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Timeday immediately preceding the Closing Date);
E. (f) amounts due and prepayments under the Other Contracts or Equipment LeasesService Contracts;
F. (g) assignable license and permit fees;fees (including, without limitation, the Bxxxxxx Hills "business tax"); and
G. (h) other similar items of income and expenses of operation.
(ii) Notwithstanding the foregoing, Seller shall in all events be entitled to retain amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due paid by tenants (referred to herein as "Tenant Reimbursements") for real estate taxes and payable to MLP under the Clay Contracts but uncollected assessments, and common area and operating expenses (collectively, "Tenant Reimbursable Expenses") as of the Effective Time shall Closing to the extent not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause in excess of the actual amount of such amounts receivable Tenant Reimbursable Expenses paid by Seller for the period prior to the Effective Time to be remitted to MLP ifClosing Date, as and when collected. On following the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as Closing and upon Purchaser's completion of the most recent date available) reconciliation of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contractsamounts with tenants for 1997, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be final.then:
Appears in 1 contract
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to the Effective Time) and Seller shall prepare a proposed statement of prorationsthe prorations and adjustments required by this Agreement (the “Closing Statement”), and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three submit it to Purchaser for approval at least ten (310) business days prior to the Effective TimeClosing Date. For purposes of prorationsExcept as otherwise provided below, each Assignment shall the items listed below are to be deemed to have occurred equitably prorated or adjusted as of 12:01 a.m. local time at the Real Property on the date Closing Date, it being understood that for purposes of prorations and adjustments, Purchaser shall be deemed the owner of the Effective TimeProperty on such day and Seller shall be deemed the owner of the Property prior to such day. The following items are to be prorated or adjusted, as provisions of this Section 4.3 that contemplate post-Closing adjustments shall survive Closing for the case may require, as applicable period of the Effective Time:time set forth in this Section 4.3.
A. real 1. Real estate and personal property taxes and assessments and other state, county and municipal taxes (other than conveyance or other transfer taxes), charges and assessments;
B. , as well as any assessments by private covenant constituting a lien or charge on the rent payable by tenants under Property (collectively, “Real Estate Taxes”) shall be prorated at Closing for the Commercial Leases; provided that rent and all other sums which are due and payable to MLP by any tenant but uncollected as then-current fiscal year of the Effective Time applicable taxing authority in which the Closing Date occurs (the “Current Tax Year”), such that Seller shall not be adjusted, but MRY3 shall use diligent efforts responsible for all Real Estate Taxes that are attributable to collect said past-due rents and shall cause the rent and other sums for the period prior to the Effective Time Closing Date and Purchaser shall be responsible for all Real Estate Taxes that are attributable to be remitted the period from and after the Closing Date. Notwithstanding the foregoing, in the event and to MLP ifthe extent that the tenants under the Leases have paid, as and when collected. On the Effective Time, MLP shall deliver pay or are required to MRY3 a schedule (prepared by MLP as pay any portion of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 shall promptly remit to MLP any such rent or other sums paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior Real Estate Taxes directly to the Effective Time on a monthly basis for six consecutive months following relevant taxing authority or authorities, such portion of the Effective TimeReal Estate Taxes shall not be prorated. For amounts due MLP not collected within thirty (30) days after Notwithstanding anything contained herein, any refunds or rebates of Real Estate Taxes which accrued before the Effective TimeClosing 1379426.v9 ImanageDB:4161238.11 Date shall remain the property of Seller, MLP and Seller shall have the right to xxx pursue any appeals filed prior to collect samethe Effective Date of Real Estate Taxes attributable to Seller’s period of ownership of the Property (including any appeal of Real Estate Taxes for the year in which Closing occurs) with respect to tax assessments for the Property. Seller may also file appeals for the 2018-2019 Real Property Tax year if the deadlines for such appeals fall before the Closing Date, but provided that upon Closing Seller shall upon Purchaser’s request either dismiss such appeals or cooperate with Purchaser’s substitution for Seller in the appeals. Purchaser shall cooperate with Seller in connection with any such appeal at no event may MLP seek out of pocket cost to evict Purchaser. If Seller is successful in any tenant such tax appeal related to the fiscal tax period in which Closing occurs, any rebates or terminate any Commercial Lease;
C. refunds shall be apportioned between the full amount parties in the same proportion as the proration of security deposits paid under Real Estate Taxes set forth on the Commercial LeasesClosing Statement executed by the parties at Closing. Seller will also calculate and refund to the Tenants’ accounts credits and charges if and where applicable. Seller will provide copies of this calculation, along with copies of the statements, to Purchaser, along with any balance due to Purchaser. If Purchaser is successful in any appeal of Real Estate Taxes which accrued during Seller’s period of ownership of the extent unappliedProperty, any rebates or refunds shall be apportioned between the parties in the same proportion as the proration of the Real Estate Taxes set forth on the Closing Statement executed by the parties at Closing. Purchaser will also calculate and apply credits and charges to Tenant’s accounts, where applicable. Purchaser will provide copies of this calculation, along with copies of the statements, to Seller, together with interest thereon if required any balance due to Seller. Either party that is successful in any appeal of Real Estate Taxes contemplated by law or otherwise; provided that (this Section 4.3.1 shall be able to the extent permitted by applicable law) MLP shall have the right deduct its actual, documented, out-of-pocket costs paid to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. water, electric, telephone and all other utility charges with respect to the Properties, and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time);
E. amounts due and prepayments under the Other Contracts or Equipment Leases;
F. assignable license and permit fees;
G. amounts receivable non-affiliated third parties in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under tax appeal from the Clay Contracts but uncollected as rebates or refunds received before apportionment of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policiesbalance thereof. The net amount provisions of any prorations this Section 4.3.1 shall be paid in cash on survive the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be finalClosing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Alexander & Baldwin, Inc.)
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to Seller shall prepare the Effective Time) Closing Statement of the prorations and a proposed statement of prorations, and other adjustments shall be prepared required by MRY3 in conformity with the provisions of this Agreement not less than and submit a draft to Purchaser, for comment and approval, at least three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective TimeClosing Date. The following items are to be prorated prorated, adjusted or adjusted, credited (as the case may require, appropriate) as of the Effective Timeclose of business on the Closing Date, it being understood that for purposes of prorations and adjustments, Purchaser shall be deemed the owner of the Property as of the Closing Date:
A. 4.4.1 real estate and personal property taxes and assessmentsassessments (on the basis of the most recent ascertainable tax xxxx if the current xxxx is not then available);
B. 4.4.2 the rent payable by tenants under the Commercial Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Seller by any tenant but uncollected as of the Effective Time Closing shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing to be remitted to MLP Seller if, as and when collected. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 Purchaser shall include the amount of such rent and other sums in the first bills thereafter submitted to the tenants in question after the Closing, and shall continue to do so for six (6) months thereafter. Purchaser shall promptly remit to MLP Seller any such rent or other sums paid by scheduled tenants, notwithstanding that a deficiency in ;
4.4.3 the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent amount of unapplied security deposits under the Leases and any interest accrued thereon for periods prior the benefit of the tenant thereunder pursuant to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant Lease or terminate any Commercial Leaseapplicable law;
C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. 4.4.4 water, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, and fuel on hand (at cost plus sales tax); provided, however, that any assignable deposits with utility companies specifically allocable to shall remain the Properties (said assignable deposits being property of the Seller and shall not be prorated or credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Timeday immediately preceding the Closing Date);
E. 4.4.5 amounts due and prepayments under the Other Contracts or Equipment LeasesService Contracts;
F. 4.4.6 assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees 4.4.7 other similar items of income and other costs associated with the maintenance or termination expenses of any insurance policies maintained by MLP prior to the Effective Time operation. Except with respect to the Properties, general real estate and personal property taxes (which shall be entitled to reprorated upon the issuance of the actual bills, if necessary), any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time at Closing shall be re-prorated reprorated and finally adjusted as soon as practicable after the Effective TimeClosing Date; otherwise, subject to the provisions of Section 4.4.2 above, all prorations shall be final.
Appears in 1 contract
Samples: Real Estate Sale Agreement (Boston Capital Real Estate Investment Trust Inc)
Closing Prorations and Adjustments. The following are to be adjusted and prorated between Seller and Buyer as of 11:59 P.M. on the day preceding the Closing Date (the "Apportionment Date"), and the net amount thereof shall be added to (if such net amount is in Seller's favor) or deducted from (if such net amount is in Buyer's favor) the payment required pursuant to Section 2:
(a) A rent roll (updated Personal property taxes, assessments, water and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges relating to within 15 days or payable in connection with the use, occupancy, repair and maintenance, ownership and operation of the Project, shall be adjusted and prorated on the basis of the fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, xxxx or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date prior to the Effective TimeClosing Date through the day before the Closing Date shall be apportioned on the basis of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Date. Unmetered water charges shall be apportioned on the basis of the charges therefor for the same period in the preceding calendar year, but applying the current rate thereto.
(b) and a proposed statement of prorations, Rents and other adjustments sums and charges (collectively, "Rents") paid or payable by Tenants under the Tenant Leases shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior adjusted and prorated to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, as the case may require, extent paid by said tenants as of the Effective Time:
A. real estate and personal property taxes and assessments;
B. Closing Date. Any amount collected by Buyer or Seller after the rent payable by tenants under the Commercial Leases; provided that rent and all other sums which are due and payable to MLP by any tenant but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 shall promptly remit to MLP any such rent or other sums paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx Closing from tenants who owe rent owed Rents for periods prior to the Effective Time Closing shall be applied (i) first in payment of Rents due for the period on or after the Closing Date, and (ii) second, in payment of Rents due for the period before the Closing Date. Each such amount, less any costs of collection (including reasonable counsel fees) reasonably allocable thereto, shall be adjusted and prorated as provided above, and the party who receives such amount shall promptly pay over to the other party the portion thereof to which it is so entitled. Buyer shall use commercially reasonable efforts to collect all such past due Rents from tenants, and shall xxxx tenants, who owe Rents for periods prior to the Closing, on a monthly basis for six consecutive months following the Effective Time. For Closing Date until amounts due MLP not collected within thirty (30) days are paid or such earlier date on which Buyer ceases all xxxxxxxx to the tenant in question due to the expiration or early termination of the subject Tenant Lease. Seller shall notify Buyer promptly after a Seller receives any payment of Rents after the Effective TimeClosing. Any payment by a tenant in an amount less than the full amount of Rents then due and payable by such tenant shall be applied to Rents collectively in the same order of priority as to time periods as is set forth in this section (c). Based upon Buyer's review of the Rent Roll and the list of delinquent tenants, MLP Buyer shall inform Seller prior to the expiration of the Due Diligence Period which tenants, if any, Seller shall be required to evict prior to Closing. Notwithstanding anything contained herein to the contrary, provided the lease between Seller and Xxxxx Xxxxxxx and/or South Florida Yachts is in good standing as of the Closing Date and continues to be in good standing thereafter with no late rent payments, Seller shall have the right to xxx collect up to $100,000 in past due rent directly from said tenant. Seller shall collect same, but in no event may MLP seek the past due rent at its sole risk and shall not have any right to evict any enforce the terms of the lease (i.e. eviction rights) against said tenant or terminate any Commercial Lease;after Closing.
C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied(c) Any Lease Security held by a Seller, together with accrued interest thereon if required wherever interest is provided for in the applicable Tenant Leases or by law or otherwiselaw; provided provided, that (any transferable non-cash security deposits made by tenants shall be delivered to Buyer at the Closing, together with such instruments of transfer as may be necessary to enable Buyer to succeed to Seller's rights thereunder. Buyer shall indemnify and hold Seller harmless from and against all claims by, and liabilities to, any tenants pertaining to the application or return of the Lease Security paid over to Buyer or for which Buyer receives a credit against the Purchase Price.
(d) Charges and transferable deposits under transferable assumed Operating Contracts. Buyer shall pay the termination fee for any Operating Contracts it elects not to assume if such agreements contain commercially reasonable terms or if such agreements are with non-affiliates of any Seller or of their respective principals. Seller shall pay any termination fees for any Operating Contracts not assumed by Buyer that contain commercially unreasonable terms or are with affiliates of any Seller or of their respective principals.
(e) The Purchase Price includes all food, beverages, cleaning and other restaurant supplies located at the Project at no additional charge. To the extent permitted that the inventory is insufficient as of the Closing Date to continue the routine operations of the Raw Bar Space without interruption, Seller shall reimburse the Buyer for all inventory costs incurred by applicable lawBuyer to achieve such level as of the Closing Date.
(f) MLP Any funds remaining in vending and telephone machines shall have be cleared by Seller prior to the right to apply security deposits, Closing and such amounts retained by Seller. Seller shall retain all accounts receivable and accounts payable as of the Closing Date. Seller shall also remove all cash from any cash registers and safes at the Project on the Closing Date.
(g) All closing and other transaction costs shall be paid as follows: Seller shall be responsible for the payment of: (i) all documentary stamp taxes and surtaxes due if any, against delinquent rents and other obligations (ii) the cost of the tenants;
D. waterSurvey to Buyer, electric(iii) the cost to record any title curative instruments, telephone and (iv) all other utility charges of Seller's attorneys fees and costs. Buyer shall be responsible for the payment of: (i)the cost of recording the Assignment of the Master Lease Documents or Memoranda with respect thereto, (ii) all costs associated with Buyer's due diligence regarding the Project, (iii) any documentary stamp taxes and intangible taxes associated with any financing of the Purchase Price, (iv) Buyer's attorneys fees and costs, and (v) the cost of any title insurance policy. To expedite the closing process, the parties may use the last day of the month immediately prior to Closing Date to calculate the estimated apportionment of certain items and within 60 days after Closing the parties shall re-prorate such items as of the Apportionment Date and pay any necessary adjustments. Any income received or expense incurred by a Seller or Buyer with respect to the PropertiesProject after the Closing shall be promptly allocated in the manner described herein, and the parties shall promptly pay or reimburse any assignable deposits with utility companies specifically allocable amount due. Within ten (10) days after a request by either party, made not later than one year after the Closing, accompanied by a statement in reasonable detail establishing (based on information becoming available after the Closing or the discovery of errors in the prorations made at Closing) that such party is entitled to a credit under this Section 9 that was not accounted for at Closing, the other party shall pay such credit (net of any such credit to which such other party may then be entitled) to the Properties (said assignable deposits being credited to MLP) (requesting party pursuant to the extent possible, utility prorations will be handled by meter readings on the Effective Time);
E. amounts due and prepayments under the Other Contracts or Equipment Leases;
F. assignable license and permit fees;
G. amounts receivable payment obligations set forth in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policiesthis Section 9. The net amount provisions of any prorations this Section 9 shall be paid in cash on survive the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be finalClosing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (HMG Courtland Properties Inc)
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to the Effective Time) The following items will be prorated and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred adjusted as of 12:01 a.m. on the date Closing Date (as defined below) as follows:
(a) Seller will credit Purchaser at Closing real estate taxes, charges and assessments affecting the Property based upon 100% of the Effective Timelast ascertainable tax xxxx(s). Any such taxes prorated on an estimated basis on the Closing Date will be reprorated by the parties when and as the actual amount of such taxes becomes known. Any adjustment due to reproration of taxes will be paid not later than thirty (30) days following the final determination of the amount of such taxes and delivery of the demand by the party to whom payment is due. The following reproration obligations of the parties will survive the Closing.
(b) Seller will pay all expenses necessary to repair, operate and maintain the Property in its current condition accrued up to and including the Closing Date. Any such expenses which are prepaid as of the Closing Date will be credited to Seller, and Purchaser will be responsible to pay such expenses accruing subsequent to the Closing Date. Any expenses that have accrued up to and including the Closing Date but have not been billed to or paid by Seller as of the Closing Date will, to the extent possible, be paid by Seller (with such payment evidenced to Purchaser) at the time of Closing, or, if not so payable, at Purchaser’s option, will be credited to Purchaser, provided that such credit will not release Seller of the obligation to make full payment if the credit is insufficient for any reason. Utility meters for utility services payable by Seller will be read on or immediately prior to the Closing Date, if possible, and the amounts due as disclosed by such readings will be paid by Seller or credited to Purchaser. Otherwise all utility charges and xxxxxxxx will be prorated using the prior month’s xxxx as of the Closing Date and will be reprorated upon receipt of actual bills for the period in question.
(c) Any and all other items are customarily prorated or required by any other provision of this Agreement to be prorated or adjusted, as the case may require, as of the Effective Time:
A. real estate and personal property taxes and assessments;
B. the rent payable by tenants under the Commercial Leases; provided that rent and all other sums which are due and payable to MLP by any tenant but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 shall promptly remit to MLP any such rent or other sums paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. water, electric, telephone and all other utility charges with respect to the Properties, and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time);
E. amounts due and prepayments under the Other Contracts or Equipment Leases;
F. assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be final.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Innovative Food Holdings Inc)
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, adjusted (as the case may require, appropriate) as of the Effective Timeclose of business on the Closing Date, it being understood that for purposes of prorations and adjustments, Seller shall be deemed the owner of the Property on such day and Purchaser shall be deemed the owner of the Property as of the day after the Closing Date:
A. (a) real estate and personal property taxes (on the basis of the most recent ascertainable tax xxxx if the current xxxx is not then available); any liens for assessments which are due and assessmentspayable on or before the Closing Date shall be paid by Seller and any assessments which become due after Closing shall be assumed by Purchaser;
B. (b) the "minimum" or "base" rent payable by tenants under the Commercial Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Seller by any tenant but uncollected as of the Effective Time Closing shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing to be remitted to MLP Seller if, as and when collected. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 Purchaser shall include the amount of such rent and other sums in the first bills thereafter submitted to the tenants in question after the Closing, and shall continue to do so for six (6) months thereafter. Purchaser shall promptly deliver to Seller a copy of each such xxxx submitted to tenants. Purchaser shall promptly remit to MLP Seller any such rent or other sums paid by scheduled tenants, notwithstanding that but only if a deficiency in the then current rent is not thereby created. MRY3 To the extent not set forth on said schedule, percentage or overage rent and reimbursement of real estate taxes payable, common area maintenance, utility charges, water and sewer charges, insurance and all other charges to or contributions by tenants under the Leases shall xxxx be prorated as follows: with respect to percentage rents, and upon receipt by Purchaser, Purchaser shall furnish to Seller copies of all sales reports from tenants who owe rent for periods prior relative thereto, including, without limitation, all sales reports with respect to any tenants whose lease years have expired as of the Closing but whose sales reports were not available on Closing and sales reports of any tenants whose lease year expires after the Closing, and the amount of any rents (including, without limitation, percentage rents), reimbursement or contribution to be made by any tenant shall be made in accordance with such tenant's Lease as now existing and Purchaser shall promptly pay to Seller a pro-rata portion of such rents, reimbursement or contribution, based upon apportionment being made as of the Closing Date, promptly after the date when such rents, reimbursement or contribution is received from the tenant;
(c) Subject to the Effective Time on a monthly basis for six consecutive months following sentence, with respect to tenant improvement costs or leasing commissions relating to (i) the Effective Time. For amounts due MLP not collected within thirty Lease with Xxxx Media, and (30ii) days any Leases, or any modification, amendment, restatement or renewal thereto, executed after the Effective Timedate hereof (items (i) and (ii) above being collectively referred to as a "New Lease"), MLP Seller and Purchaser agree that such costs and commissions shall be prorated over the term of any New Lease with Seller being responsible for a portion of such costs and commissions based on the ratio of the term of the New Lease through the Closing Date to the total term of the New Lease, excluding any unexercised option periods. Additionally, Purchaser shall have no obligation to pay any "inside" commissions to Seller or its affiliated entities).
(d) the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. the full amount of security deposits paid under the Commercial LeasesLeases shall be credited to Purchaser at Closing. Additionally, at Closing, Seller's interest in that certain letter of credit No. 84007905, issued by The Central and Southern Bank on behalf of Xxx Xxxxxx and Associates, Inc., shall be assigned to Purchaser, provided that Purchaser acknowledges that such letter of credit expires on March 18, 1997. Subsequent to the extent unapplied, together with interest thereon if required by law date hereof Seller shall not apply any security deposits toward any delinquent rental or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenantstenant default;
D. (e) water, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, fuel on hand (at cost plus sales tax), and any assignable deposits with utility companies specifically allocable to the Properties utility
(said assignable deposits being credited to MLPf) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time);
E. amounts due and prepayments under the Other Contracts or Equipment LeasesService Contracts;
F. (g) assignable license and permit fees;
G. amounts receivable in connection with (h) Purchaser shall pay Seller at Closing the Clay Contracts sum of $137,000.00 for tenant improvements and commissions for each of the two Railcar tenant lease transactions (the "Railcar Reimbursement"), provided that amounts receivable which are the Railcar Reimbursement shall be reduced by an amount equal to the product of (a) the number of days from December 1, 1996 to the Closing, and (b) $73.65;
(i) Purchaser shall receive at Closing, a credit equal to the then-present value of the $750,000 purchase price due and payable to MLP the ground lessor ("Ground Lessor") under the Clay Contracts but uncollected Ground Lease on December 31, 2021 pursuant to the Option to Purchase set forth in Section 17 of the Ground Lease. The present value of such amount shall be calculated using a discount rate equal to the rate at the time of Closing of long-term U.S. Treasury obligations of comparable maturity; and
(j) other items of income and expenses of operation.
(ii) Notwithstanding the foregoing, Seller shall in all events be entitled to retain amounts paid by tenants (referred to herein as "Tenant Reimbursements") for real estate taxes and assessments, and common area and operating expenses (collectively, "Tenant Reimbursable Expenses") as of the Effective Time shall Closing to the extent not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause in excess of the actual amount of such amounts receivable Tenant Reimbursable Expenses paid by Seller for the period prior to the Effective Time to be remitted to MLP ifClosing Date, as and when collected. On following the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as Closing and upon Purchaser's completion of the most recent date availablereconciliation of such amounts with tenants for 1997 (which seller and Purchaser agree shall be completed on or before May 31, 1998), then:
(x) in the event that the amount of Tenant Reimbursements collected by Seller for 1997 is less than the amount of Tenant Reimbursable Expenses paid by Seller with respect to 1997 and for which Seller is entitled to recover under the terms of the Leases, Purchaser shall (1) to the extent such amounts have already been collected by Purchaser from the tenants, promptly remit such amounts to Seller but only if the applicable tenant is otherwise current in the payment of all obligations due for the period following Closing, and (2) to the extent such past due but uncollected receivables. MRY3 amounts have not yet been collected from tenants, Purchaser shall promptly remit xxxx the tenants for such amounts and continue to MLP any xxxx such receivables tenants for such amounts each month for six (6) months thereafter, and, promptly upon receipt thereof, pay such amounts to Seller; (y) in the event that the amount of Tenant Reimbursements collected by Seller for 1997 exceeds the amount of Tenant Reimbursable Expenses paid by Seller with respect to 1997 and for which Seller is entitled to recover under the Clay Contractsterms of the Leases, notwithstanding Seller shall remit such excess amounts to Purchaser, provided, that Purchaser shall be thereafter obligated to promptly remit the applicable portion to the particular tenants entitled thereto; and (z) Seller and Purchaser agree to cooperate in (1) obtaining the final calculations of Tenant Reimbursements collected by Seller and Purchaser for 1997 and Tenant Reimbursable Expenses paid by Seller and Purchaser with respect to 1997, and (2) Purchaser's billing tenants for any amounts due as a deficiency in the then current receivables is thereby created;result of such calculations.
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP (iii) Seller shall be responsible for paying all premiumsthe reconciliation with tenants of Tenant Reimbursements and Tenant Reimbursable Expenses for the calendar year 1996, fees and other costs associated with (x) in the maintenance or termination event the amount of any insurance policies maintained Tenant Reimbursements collected by MLP prior to Seller for 1996 is less than the Effective Time amount of Tenant Reimbursable Expenses paid by Seller with respect to 1996 and for which Seller is entitled to recover under the Propertiesterms of the Leases, and then Seller shall be entitled to xxxx such tenants and retain any refunds such amounts due from tenants, and (y) in connection with the termination of said policies. The net event that the amount of any prorations Tenant Reimbursements collected by Seller for 1996 exceeds the amount of Tenant Reimbursable Expenses paid by Seller with respect to 1996 and for which Seller is entitled to recover under the terms of the Leases, then, to the extent required under the terms of the Leases, Seller shall be paid in cash on remit such excess amounts to the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be finalapplicable tenants.
Appears in 1 contract
Samples: Real Estate Sale Agreement (First Capital Institutional Real Estate LTD 1)
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to Sellers shall prepare the Effective Time) Closing Statement of the prorations and a proposed statement of prorations, and other adjustments shall be prepared required by MRY3 in conformity with the provisions of this Agreement not less than and submit it to Purchaser at least three (3) business days Business Days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective TimeClosing Date. The following items are to be prorated prorated, adjusted or adjustedcredited (as appropriate), as it being understood that for purposes of prorations and adjustments, the case may require, as applicable Seller shall be deemed to be the owner of the Effective Timeapplicable portion of the Property prior to but not including the Closing Date and the applicable Purchaser shall be deemed to be the owner of the applicable portion of the Property on and following the Closing Date:
A. 4.4.1 real estate and personal property taxes and assessments, in each case, with the applicable Seller responsible for taxes attributable to the portion of the tax year which is prior to the Closing Date and the applicable Purchaser responsible for taxes attributable to the remainder of the tax year (which prorations shall be calculated on the basis of the most recent available tax xxxx if the current xxxx is not then available);
B. 4.4.2 sales, occupancy, room, telecommunications, beverage and similar taxes to which the rent payable by tenants operations of any Hotel is subject (the taxes in this Section 4.4.2, “Hotel Taxes”), in each case, with the applicable Seller responsible for taxes attributable to the portion of the tax period which is prior to the Closing Date and the applicable Purchaser responsible for taxes attributable to the portion of the tax period after the Closing Date;
4.4.3 monthly rents and other fixed periodic payments under the Commercial Leases; provided that no proration shall be made of any rent and all or other sums revenue item which are due and payable to MLP by any tenant but uncollected is overdue as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 shall promptly remit to MLP any Closing Date until such rent or other sums revenue item is actually received, at which time it shall be prorated and paid to the applicable Purchaser or the applicable Seller in accordance with the terms of this Agreement. To the extent the applicable Purchaser receives rents (including operating expense, tax and insurance charges payable by scheduled tenants) on or after the Closing Date, notwithstanding such payments shall be applied first toward the payment in full of all rents and other amounts due to such Purchaser with respect to periods following Closing, then allocated for the month of Closing and thereafter the balance applied to delinquent rents or other amounts due to Sellers, with Sellers’ share thereof being delivered to Seller within five (5) days after such Purchaser’s receipt of such amounts;
4.4.4 if the Debt Assumption is consummated, interest and other charges (other than principal) under the Assumed Debt that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for have accrued with respect to periods prior to the Effective Time on a monthly basis for six consecutive months following Closing Date shall be the Effective Time. For amounts due MLP not collected within thirty (30) days responsibility of the applicable Sellers of the Encumbered Hotel Assets, and interest and other charges under the Assumed Debt in respect of any period after and including the Effective Time, MLP Closing Date shall have be the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Leaseresponsibility of the applicable Purchaser;
C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. 4.4.5 water, electric, telephone and all other utility and fuel charges with respect to (on the Propertiesbasis of the number of days in each applicable xxxx occurring prior to, and on or after, the Closing Date) and fuel on hand (at cost plus sales tax); provided, however, that any assignable deposits with utility companies specifically allocable to shall remain the Properties (said assignable deposits being credited to MLP) (to property of the extent possible, utility prorations will applicable Seller and shall not be handled by meter readings on the Effective Time)prorated or credited;
E. 4.4.6 amounts due and prepayments payable by the applicable Seller under the Other Assumed Service Contracts and any unamortized portion of any lump sum or Equipment Leasesup-front payments paid by such Seller under Assumed Service Contracts;
F. 4.4.7 assignable license and permit fees;
G. amounts 4.4.8 rents and other periodic charges under Ground Leases;
4.4.9 accrued and unpaid tour and travel agent commissions;
4.4.10 the balance (less any contested charges) of the open and unpaid account (“Guest Ledger Account”) for each person who is a guest at a Hotel on the day immediately preceding the Closing Date shall be assigned to the applicable Purchaser and prorated between the applicable Seller and the applicable Purchaser as follows:
(a) all room revenue posted for all days preceding the Closing Date shall belong to the applicable Seller (but shall be paid over to such Seller only as and when actually collected (less reasonable administrative and collection costs), except for the day immediately preceding the Closing Date, which shall be allocated one-half to the applicable Purchaser and one-half to the applicable Seller. The applicable Seller shall be responsible for all taxes and franchise fees for all guest charges preceding the Closing Date, except for the day immediately preceding the Closing Date, which shall be allocated one-half to the applicable Purchaser and one-half to the applicable Seller; and
(b) all room revenue posted for all days on and after the Closing Date shall be allocated to the applicable Purchaser;
4.4.11 any accounts receivable outstanding as of Closing shall be assigned to the applicable Purchaser, and the amount of the same increasing the Purchase Price payable to the Seller to which such accounts receivable relate; provided, however, that the increase in the Purchase Price with respect to accounts receivable which are (a) outstanding for thirty (30) days or less at Closing shall be one hundred percent (100%) of such receivables, (b) outstanding for a period between thirty-one (31) to sixty (60) days at Closing shall be ninety percent (90%) of such receivables; and (c) outstanding for a period between sixty-one (61) to ninety (90) days at Closing shall be seventy-five percent (75%) of such receivables; and there shall be no increase in the Purchase Price for any accounts receivable which are more than ninety (90) days outstanding at Closing;
4.4.12 any outstanding deposits or advance payments received and retained by or on behalf of any Seller in connection with any reservation at a Hotel, in the form of a credit against the Purchase Price payable to such Seller;
4.4.13 any gift certificate or other writing (other than trade agreements and food and beverage discount coupons) issued by any Seller or manager of a Hotel which entitles the holder or bearer to a credit (whether in a specified dollar amount or for a specified item, such as a room night or meal) to be applied against the usual charge for rooms, meals and/or other goods or services at any Hotel, in the form of a credit against the Purchase Price to such Seller;
4.4.14 the outstanding balance of all security deposits under the Leases;
4.4.15 all cash on hand at each Hotel, with such cash retained by the applicable Purchaser and the amount of the same increasing the Purchase Price payable to the Seller that owns the applicable Hotel (Sellers shall perform, or cause to be performed, an accounting of cash on hand at the Property (i.e., in house banks, xxxxx cash, including till money and, to the extent the same are the property of Sellers, vending machines and pay telephones) in the presence of a representative of Purchaser);
4.4.16 if the Debt Assumption is consummated, all cash and cash equivalents held in respect of the Assumed Debt and not released to the Sellers owning the Encumbered Hotel Assets at or prior to the Closing (such as escrows and reserves for taxes, insurance, FF&E reserves, etc.) (but the rights with respect to which are assigned to the applicable Purchaser) and the amount of the same increasing the Purchase Price payable to the applicable Sellers owning the Encumbered Hotel Assets; and
4.4.17 The Purchase Price shall be further adjusted at the Closing in respect of property improvement plans required in connection with the Clay Contracts provided Replacement Franchise Agreements as follows:
(a) In the event that amounts receivable which are due no Excluded Hotel Asset has been substituted for a Hotel Asset in accordance with the express terms of Section 2.6 hereof, the Purchase Price shall be reduced by Seven Million Five Hundred Thousand and payable No/100ths Dollars ($7,500,000.00).
(b) If one or more Excluded Hotel Assets (collectively, the “Substitute Properties”) have been substituted for one or more Hotel Assets (collectively, the “Removed Properties”) in accordance with the express terms of Section 2.6 hereof, the Purchase Price shall be reduced by an amount equal to MLP under (i) Seven Million Five Hundred Thousand and No/100ths Dollars ($7,500,000.00), plus (ii) (A) fifty-percent (50%) of (B) the Clay Contracts but uncollected as figure that is equal to (x) the total of the Effective Time Agreed PIP Allocation for each of the Substitute Properties less (y) the total of the Agreed PIP Allocation for each of the Removed Properties (such amount determined by clauses (i) and (ii), the “PIP Adjustment”) (for the avoidance of doubt, if the PIP Adjustment is a negative number, the Purchase Price shall not be adjustedreduced); provided, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for however, that if the period prior to PIP Adjustment is a positive number, the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as total reduction of the most recent date availablePurchase Price under this Section 4.4.17(b) shall under no circumstances exceed Fifteen Million and No/100ths Dollars ($15,000,000), regardless of all such past due but uncollected receivables. MRY3 the Agreed PIP Allocation of the Substituted Properties.
(c) The adjustments described in Sections 4.4.17(a) and 4.4.17(b) shall promptly remit to MLP any such receivables paid under reduce the Clay Contractsportion of the Purchase Price consisting of the Cash Consideration and be spread ratably across the Allocated Purchase Prices for each Hotel Asset set forth on Schedule 2 (or, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination case of any insurance policies maintained by MLP prior to the Effective Time Excluded Hotel Asset that has been substituted in accordance with respect to the PropertiesSection 2.6, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be finalSchedule 8).
Appears in 1 contract
Samples: Real Estate Sale Agreement (W2007 Grace Acquisition I Inc)
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to the Effective Time) All normal and a proposed statement customary proratable items, including by way of prorationsillustration and not limitation, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, as the case may require, as of the Effective Time:
A. real estate taxes and assessments, collected rents, operating expenses, personal property taxes and assessments;
B. the rent payable by tenants under the Commercial Leases; provided that rent other operating expenses and all other sums which are due and payable to MLP by any tenant but uncollected fees, shall be prorated as of the Effective Time shall not be adjustedClosing Date, but MRY3 shall use diligent efforts the Seller being charged or credited, as appropriate, for all of the same attributable to collect said past-due rents and shall cause the rent and other sums for the period prior up to the Effective Time to be remitted to MLP if, as Closing Date (and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 shall promptly remit to MLP credited for any such rent or other sums amounts paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior Seller attributable to the Effective Time period on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days or after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security depositsClosing Date, if any, against delinquent rents assumed by the Purchaser) and other obligations of the tenants;
D. water, electric, telephone and all other utility charges with respect to the PropertiesPurchaser being responsible for, and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time);
E. amounts due and prepayments under the Other Contracts or Equipment Leases;
F. assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3charged, as the case may be, for all of the same attributable to the period on and after the Closing Date. Such adjustments shall be paid by the other party. Any proration Purchaser to the Seller (if the prorations result in a net credit to the Seller) or by the Seller to the Purchaser (if the prorations result in a net credit to the Purchaser) by increasing or reducing the cash to be paid by the Purchaser at Closing.
A. All real and personal property taxes and assessments (general or special) which must be estimated on have become due and payable; all charges for improvements or services already made to, or which benefit the Effective Time Property, which have not yet become due and payable; and all assessments (general or special) arising out of or in connection with any assessment district created or confirmed prior to the Closing Date shall be re-paid in full by the Seller at the Closing whether due in installments or otherwise. All real and personal property taxes (“Current Taxes”) levied against any portion of the Property during the calendar year in which the Closing Date occurs shall be prorated and finally adjusted as soon of the Closing Date such that the Seller is responsible for that portion of the Current Taxes allocable to the period from the beginning of such calendar year to the Closing Date, and the Purchaser is responsible for that portion of the Current Taxes allocable to the period from the Closing Date through the end of the calendar year. If the tax bills for the Current Taxes have not been issued as practicable after of the Effective Time; otherwiseClosing Date, all the Seller and the Purchaser agree to use the amount of the taxes for the calendar year immediately preceding the calendar year in which the Closing Date occurs for the purpose of computing prorations under this paragraph and such prorations shall be finaladjusted between the Seller and the Purchaser upon presentation of written evidence that the actual taxes due and payable during the calendar year in which the Closing Date occurs differ from the amounts used at Closing.
B. In the event the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., “escape assessment” or “roll-back taxes”) based upon the change in land usage or ownership of the Property on or after the Closing Date, the Purchaser hereby agrees to pay all such taxes and to indemnify and save the Seller harmless from and against all liabilities for such taxes. In the event the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., “escape assessment” or “roll-back taxes”) based upon the change in land usage or ownership of the Property prior to the Closing Date, the Seller hereby agrees to pay all such taxes and to indemnify and save the Purchaser harmless from and against all liabilities for such taxes. Such indemnities shall survive the Closing and not be merged therein.
C. The final readings and final xxxxxxxx for utilities will be made, if possible, as of the Closing Date, in which case the Seller shall pay all such bills as of the Closing Date and no proration shall be made at the Closing with respect to utility bills. Otherwise, a proration shall be made based upon the parties’ reasonable good faith estimate and a readjustment made within 30 days after the Closing or upon receipt of the applicable bills, if necessary. The Seller shall be entitled to the return of any deposit(s) posted by it with any utility company, and the Seller shall notify each utility company serving the Property to terminate the Seller’s account, effective as of noon on the Closing Date.
D. If applicable, charges under any ongoing Property Contracts that are assigned by the Seller to the Purchaser, pursuant to the Purchaser’s request, shall be adjusted and prorated between the Seller and the Purchaser as of the Closing Date.
E. All collected rent (whether fixed monthly rentals, additional rentals, escalation rentals, retroactive rentals, operating cost pass-throughs or other sums and charges payable by Tenants under the Leases), income and expenses from any portion of the Property shall be prorated as of the Closing Date (prorated for any partial month). The Purchaser shall receive all collected rent and income attributable to dates from and after the Closing Date. The Seller shall receive all collected rent and income attributable to dates prior to the Closing Date. Notwithstanding the foregoing, no prorations shall be made in relation to either (i) non-delinquent rents which have not been collected as of the Closing Date, or (ii) delinquent rents existing, if any, as of the Closing Date (the foregoing (i) and (ii) referred to herein as the “Uncollected Rents”). In adjusting for Uncollected Rents, no adjustments shall be made in the Seller’s favor for rents which have accrued and are unpaid as of the Closing, but the Purchaser shall pay the Seller such accrued Uncollected Rents as and when collected by the Purchaser. The Purchaser agrees to xxxx tenants of the Property for all Uncollected Rents and to take reasonable actions to collect Uncollected Rents, provided, however, that the Purchaser’s obligation pursuant to this sentence shall not obligate the Purchaser to terminate any Tenant Lease with an existing tenant, evict any existing tenant from the Property or commence a lawsuit. To the extent that the Purchaser subsequently collects any Uncollected Rents or revenues allocable to the period prior to the Closing Date, the Purchaser shall remit the same to the Seller; however, except as specifically provided herein, the Purchaser is assuming no obligation whatsoever for the collection of such Uncollected Rents or revenues, and all Uncollected Rents and revenues collected subsequent to the Closing Date shall always, in the first instance, be applied first to current rentals and revenues, if any, then due under the leases or otherwise. Notwithstanding the forgoing, if the Purchaser collects rents from a tenant, which has accrued Uncollected Rents, such collections will first be applied to current rents of the tenant, then to satisfy any outstanding delinquencies of the tenant attributable to post-closing obligations, and then to cover any outstanding delinquencies to Seller attributable to Uncollected Rents.
F. To the extent permitted in the Tenant Leases affecting the Property, and to the extent same has not been completed by the Seller prior to the Closing Date, the Purchaser shall, with the Seller’s cooperation, invoice all tenants for common area maintenance charges, taxes, insurance and other “additional rent” charges which tenants are required to pay under said Tenant Leases, and attributable to calendar year 2007. The Purchaser shall use its best efforts to collect such revenues and to the extent the Purchaser collects such revenues allocable to the period prior to the Closing Date, the Purchaser shall remit the same to the Seller; provided, however, the Purchaser is assuming no obligation whatsoever for the collection of such revenues, and all revenues collected subsequent to the Closing Date shall always, in the first instance, be applied first to current revenues, if any, then due under the leases. At such time as the Purchaser invoices tenants for common area maintenance charges, taxes, insurance and other “additional rent” charges which tenants are required to pay under said leases and attributable to calendar year 2006, to the extent the Purchaser collects such revenues allocable to the period prior to the Closing Date, the Purchaser shall remit the same to the Seller in accordance with the foregoing terms and conditions.
G. All accrued wages, social security, payroll taxes, unemployment compensation, worker’s compensation, vacation pay, fringe benefits and items of a similar nature due persons employed in connection with the operation and maintenance of the Property shall be paid by the Seller through the Closing Date.
H. At Closing, the Purchaser shall receive a credit against the Purchase Price in an amount equal to the received and unapplied balance of all cash (or cash equivalent) tenant deposits, including, but not limited to, security, damage or other refundable deposits or required to be paid by any of the tenants to secure their respective obligations under the Tenant Leases, together, in all cases, with any interest payable to the tenants thereunder as may be required by their respective tenant lease or state law (the “Tenant Security Deposit Balance”). Any cash (or cash equivalents) held by the Seller which constitute the Tenant Security Deposit Balance shall be retained by the Seller in exchange for the foregoing credit against the Purchase Price and shall not be transferred by the Seller pursuant to this Agreement (or any of the documents delivered at Closing), but the obligation with respect to the Tenant Security Deposit Balance nonetheless shall be assumed by the Purchaser.
I. Seller shall be responsible for paying all deed transfer, revenue or similar taxes with respect to the sale of the Property to Purchaser, and for the cost of recording any documents clearing title to the Property.
J. In general, and except as provided in this Agreement or the closing documents, the Seller shall be entitled to all income, and shall pay all expenses, relating to the operation of the Property for the period prior to the Closing Date and the Purchaser shall be entitled to all income, and shall pay all expenses, relating to the operation of the Property for the period commencing on and after the Closing Date. The Purchaser or the Seller may request that the Purchaser and the Seller undertake to re-adjust any item which has been prorated in accordance with the provisions of this Agreement; provided, however, that neither party shall have any obligation to re-adjust any items after the expiration of ninety (90) calendar days after Closing unless such items exceed $1,000.00 in magnitude (either individually or in the aggregate). The provisions of this paragraph shall survive the Closing and delivery of the Deed to the Purchaser.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (NNN Healthcare/Office REIT, Inc.)
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, adjusted (as the case may require, appropriate) as of the Effective Timeclose of business on the Closing Date, it being understood that for purposes of prorations and adjustments, Seller shall be deemed the owner of the Property on such day and Purchaser shall be deemed the owner of the Property as of the day after the Closing Date:
A. (a) real estate and personal property taxes and assessmentsassessments (on the basis of the most recent ascertainable tax xxxx if the current xxxx is not then available);
B. (b) the "minimum" or "base" rent payable by tenants under the Commercial Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Seller by any tenant but uncollected as of the Effective Time Closing shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing to be remitted to MLP Seller if, as and when collected. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 Purchaser shall include the amount of such rent and other sums in the first bills thereafter submitted to the tenants in question after the Closing, and shall continue to do so for six (6) months thereafter. Purchaser shall promptly deliver to Seller a copy of each such xxxx submitted to tenants. Purchaser shall promptly remit to MLP Seller any such rent or other sums paid by scheduled tenants, notwithstanding that but only if a deficiency in the then current rent is not thereby created. MRY3 To the extent not set forth on said schedule, percentage or overage rent and reimbursement of real estate taxes payable, common area maintenance, mall maintenance, utility charges, water and sewer charges, insurance and merchant's association dues and assessments and all other charges to or contributions by tenants under the Leases shall xxxx be prorated as follows: with respect to percentage rents, and upon receipt by Purchaser, Purchaser shall furnish to Seller copies of all sales reports from tenants who owe rent for periods prior relative thereto, including, without limitation, all sales reports with respect to any tenants whose lease years have expired as of the Closing but whose sales reports were not available on Closing and sales reports of any tenants whose lease year expires after the Closing, and the amount of any rents (including, without limitation, percentage rents), reimbursement or contribution to be made by any tenant shall be made in accordance with such tenant's Lease as now existing and Purchaser shall promptly pay to Seller a pro-rata portion of such rents, reimbursement or contribution, based upon apportionment being made as of the Closing Date, promptly after the date when such rents, reimbursement or contribution is received from the tenant;
(c) Subject to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days sentence, with respect to tenant improvement costs or leasing commissions relating to Leases, or any modification, amendment, restatement or renewal thereto, executed after the Effective Timedate hereof (referred to as a "New Lease"), MLP Seller and Purchaser agree that such costs and commissions shall have be prorated over the right term of any New Lease with Seller being responsible for a portion of such costs and commissions based on the ratio of base rent payments received by Seller through the Closing Date to xxx the total base rent payable over the term of the particular New Lease (including, without limitation, the New Lease to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Lease;First Indiana Blimpie Venture ("Blimpie")).
C. (d) the full amount of security deposits (and any interest thereon) paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. (e) water, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, fuel on hand (at cost plus sales tax), and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Timeday immediately preceding the Closing Date);
E. (f) amounts due and prepayments under the Other Contracts or Equipment LeasesService Contracts;
F. (g) assignable license and permit fees;; and
G. (h) other similar items of income and expenses of operation.
(ii) Notwithstanding the foregoing, Seller shall in all events be entitled to retain amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due paid by tenants (referred to herein as "Tenant Reimbursements") for real estate taxes and payable to MLP under the Clay Contracts but uncollected assessments, and common area and operating expenses (collectively, "Tenant Reimbursable Expenses") as of the Effective Time shall Closing to the extent not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause in excess of the actual amount of such amounts receivable Tenant Reimbursable Expenses paid by Seller for the period prior to the Effective Time to be remitted to MLP ifClosing Date, as and when collected. On following the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as Closing and upon Purchaser's completion of the most recent date available) reconciliation of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contractsamounts with tenants for 1997, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be final.then:
Appears in 1 contract
Samples: Purchase and Sale Agreement (First Capital Insured Real Estate Limited Partnership)
Closing Prorations and Adjustments. Seller shall prepare the Closing Statement of the prorations and adjustments required by this Agreement and submit it to Purchaser at least one (a1) A rent roll (updated to within 15 days business day prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective TimeClosing Date. The following items are to be prorated prorated, adjusted or adjusted, credited (as the case may require, appropriate) as of the Effective Timeclose of business on the Closing Date, it being understood that for purposes of prorations and adjustments, Purchaser shall be deemed to be the owner of the Property as of 12:00 a.m. on the Closing Date and Seller shall be deemed to be the owner of the Property through 11:59 p.m. on the day preceding the Closing Date:
A. 4.4.1 real estate and personal property taxes and assessmentsassessments (on the basis of the most recent available tax xxxx if the current xxxx is not then available, and in any case, calculated taking into account the 4% discount available for payment of real estate taxes prior to December; provided, however, in the event the Closing takes place after the period of time for the 4% discount has expired, the discount shall be applied only in the event Seller took advantage of such discount when it paid the real estate taxes);
B. 4.4.2 the rent payable by tenants under the Commercial Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Seller by any tenant but uncollected as of the Effective Time Closing (collectively, the “Delinquent Amounts”) shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time such Delinquent Amounts to be remitted to MLP Seller if, as and when collected. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent Delinquent Amounts. In the event any Delinquent Amount is inadvertently omitted from such schedule, Seller shall not be deemed to have waived its rights to such Delinquent Amount. Purchaser shall include any and other sums owed by tenantsall Delinquent Amounts in the first bills submitted to the tenants in question after the Closing, and shall continue to do so for twelve (12) months thereafter. MRY3 Purchaser shall promptly remit to MLP Seller any such rent or other sums paid by scheduled tenants, notwithstanding Delinquent Amounts provided that a deficiency in the then current total rent due Purchaser is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Leasecreated thereby;
C. 4.4.3 the full amount of unapplied refundable security deposits paid held by Seller under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. 4.4.4 water, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, and fuel on hand (at cost plus sales tax); provided, however, that any assignable deposits with utility companies specifically allocable to shall remain the Properties (said assignable deposits being property of the Seller and shall not be prorated or credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Timeday immediately preceding the Closing Date);
E. 4.4.5 amounts due and prepayments payable by Seller under the Other Service Contracts but excluding any lump sum or Equipment Leasesup front payments paid to Seller with respect thereto;
F. 4.4.6 assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees 4.4.7 other similar items of income and other costs associated with the maintenance or termination expenses of any insurance policies maintained by MLP prior to the Effective Time operation. Except with respect to the Properties, general real estate and personal property taxes (which shall be entitled to reprorated upon the issuance of the actual bills, if necessary), any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time at Closing shall be re-prorated reprorated and finally adjusted as soon as practicable after the Effective TimeClosing Date; otherwise, subject to the provisions of Section 4.4.2 above, all prorations shall be final. In addition, notwithstanding anything to the contrary contained in this Section 4, Seller reserves the right (i) to meet with governmental officials and to contest any reassessment governing or affecting Seller’s obligations under Section 4.4.1 above, and (ii) to contest any assessment of the Property or any portion thereof and to attempt to obtain a refund for any taxes previously paid. Seller shall retain all rights with respect to any refund of taxes applicable to any period prior to the Closing Date. The obligations of Purchaser and Seller under Section 4.4 of this Agreement shall survive the Closing.
Appears in 1 contract
Samples: Real Estate Sale Agreement (Paladin Realty Income Properties Inc)
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, adjusted by the parties (as the case may require, appropriate) as of the Effective TimeClosing Date, it being understood that for purposes of prorations and adjustments, Seller shall be deemed the owner of the Property on the day preceding the Closing Date and Purchaser shall be deemed the owner of the Property on the Closing Date; provided, however, that if Seller receives the Purchase Price in immediately available funds after 2:00 p.m., Chicago time on the Closing Date, then, for purposes of prorations and adjustments, Seller shall be deemed the owner of the Property on the Closing Date and Purchaser shall be deemed the owner of the Property on the day after the Closing Date:
A. (a) real estate and personal property taxes and assessmentsassessments ("Taxes") assessed for 1998 and payable in 1999 shall be paid by Seller at or prior to Closing or credited to Purchaser. Taxes assessed for 1999 and payable in 2000 shall be prorated based on the most recent ascertainable tax xxxx if the current xxxx is not then available and, in all events, subject to reproration as described in Section 4.C.[iv] upon receipt of the final xxxx;
B. (b) the "minimum" or "base" rent payable by tenants under the Commercial Leases ("Base Rent") and Operating Expense Reimbursements (as defined in Section 4(c)(ii)) payable by tenants under the Leases; provided provided, however, that rent and all other sums which are due and payable to MLP by any tenant Seller as of Closing but uncollected as of the Effective Time Closing shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing to be remitted to MLP Seller if, as and when collected, subject, however, to the remaining provisions of this Section 4.C.(i)(b). On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available"Closing Delinquency Schedule") of all such past due but uncollected rent and other sums owed by tenants, (collectively, the "Past Due Rents"). MRY3 Purchaser shall promptly remit to MLP Seller any such rent or other sums Past Due Rents paid by scheduled tenantstenants set forth on the Closing Delinquency Schedule, notwithstanding that a deficiency but only if the applicable tenants are otherwise current in the then current rent is thereby createdpayment of all obligations due for the period following Closing. MRY3 The amount of any Past Due Rents to be paid by any tenant shall xxxx tenants who owe rent be paid in accordance with such tenant's Lease as now existing (Purchaser hereby covenanting and agreeing not to modify the Leases after Closing to change the date and/or method for periods payment of amounts attributable to the period prior to Closing). Seller shall not be permitted (during the Effective Time on a monthly basis for six consecutive months month period following Closing) to institute or continue any collection actions against any tenants whose Lease has not terminated or any tenants that are still in possession of the Effective Time. For amounts due MLP not collected within thirty premises demised under their Lease.
(30c) days after the Effective Time, MLP Percentage rent shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. the full amount of security deposits paid under the Commercial Leases, be prorated as follows: to the extent unappliednot set forth on the Closing Delinquency Schedule, together with interest thereon if required "percentage" or "overage" rent, shall be prorated as follows: percentage rent as and when collected shall be prorated based upon each party's pro rata share of the sales for the Tenant's fiscal year (for determination of sales under the Lease) in which Closing occurs. Prorations shall be on the basis of a per diem (number of days) method of allocation. Upon receipt by law or otherwise; provided that (Purchaser, Purchaser shall furnish to Seller copies of all sales reports from tenants relative to the extent permitted percentage rent, including, without limitation, all sales reports with respect to any tenants whose lease years have expired as of the Closing but whose sales reports were not available on Closing and sales reports of any tenants whose lease years expire after the Closing, and the amount of any percentage rent shall be paid in accordance with such tenant's Lease as now existing, and Purchaser shall pay to Seller a pro rata portion of such percentage rent, calculated in the manner provided above, promptly after the date when such rent is received from the tenant.
(d) With respect to tenant improvement costs and/or allowances or leasing commissions relating to "New Leases" (as hereinafter defined) for space which is vacant as of the date of this Agreement, Seller and Purchaser agree that such costs, rent abatements, allowances and commissions shall be prorated over the term of any such New Lease with Seller being responsible for a portion of such costs, rent abatements, allowances and commissions based on the ratio of Base Rent payments received by applicable lawSeller through the Closing Date to the total Base Rent payable over the term of the particular New Lease and, in the event that Seller has paid or incurred such costs, rent abatements, allowances and/or commissions prior to Closing, Purchaser shall reimburse Seller at Closing for the amount of any such costs, allowances and/or commissions paid by Seller, based on the above- described proration;
(e) MLP shall have the right to apply security depositsamount of the Security Deposits held by Seller as of the Closing Date, if any, with Purchaser receiving a credit at Closing against delinquent rents and other obligations the Purchase Price in the amount of the tenantsSecurity Deposits held by Seller as of the Closing Date, if any;
D. (f) water, sewer, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, fees and use charges, fuel on hand (at cost plus sales tax) and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Timeday immediately preceding the Closing Date);
E. (g) amounts due and prepayments under the Other Service Contracts or Equipment Leasesand the Maintenance Agreement;
F. (h) assignable license and permit fees;; and
G. (i) other similar items of income and expenses of operation (including but not limited to amounts receivable in connection with the Clay Contracts provided that amounts receivable or due under any reciprocal easement or similar agreement).
(ii) For purposes hereof, real estate taxes, common area maintenance, utility charges, water and sewer charges, insurance, and all other expenses for which charges are due and payable made to MLP tenants or contributions are made by tenants under the Clay Contracts Leases are referred to as "Operating Expenses", and the amount reimbursable by tenants under the Leases for Operating Expenses are referred to as "Operating Expense Reimbursements".
(a) As soon as practical after Closing, but uncollected in no event later than May 1, 2000 (except with respect to Taxes, which shall be reprorated upon the issuance of the final xxxx for 1999 when issued in 2000), Seller and Purchaser shall, with respect to any amounts paid, prorated or adjusted at Closing pursuant to Section 4.C.(i) above based on estimates or formulae, as applicable, jointly determine and reapportion such amounts in accordance with Section 4.C.(i) above upon determination of the actual costs or expenses with respect thereto. In the event that the amount credited to Purchaser by Seller at Closing exceeds the amount of the credit that Purchaser should have received had such actual amounts been available at Closing, Purchaser shall promptly remit such excess amount to Seller. In the event that the amount credited to Seller by Purchaser at Closing exceeds the amount of the credit that Seller should have received, Seller shall promptly remit such excess to Purchaser. If any payment required under this Section is not made within 30 days of final calculation, such amount will thereafter bear interest at a rate per annum equal to 4% above the then current "prime rate" announced by Bank One, Chicago, Illinois.
(b) In the event that the amount of Operating Expense Reimbursements retained by Seller as of Closing (net of credits to Purchaser) is less than the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts amount of Operating 9 Expense Reimbursements to collect said past-due amounts and shall cause such amounts receivable which Seller is entitled after calculation of Seller's share of actual Operating Expenses for the period prior to the Effective Time to be remitted to MLP ifclosing, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 Purchaser shall promptly remit such amounts to MLP Seller. In the event that the amount of the Operating Expense Reimbursements retained by Seller as of Closing (net of credits to Purchaser) exceeds the amount of the Operating Expense Reimbursements that Seller should have retained at Closing had the actual amounts of Operating Expenses for the period prior to Closing been available at Closing, Seller shall remit such excess amounts (net of amounts due Seller from the particular tenant as to which the Operating Expense applies) to Purchaser and Purchaser shall be thereafter obligated to promptly remit the applicable portion to the particular tenants entitled thereto (and Purchaser shall indemnify, defend and hold Seller, its beneficiaries, their partners, and their respective directors, officers, employees and agents, and each of them, harmless from and against any losses, claims, damages and liabilities [including, without limitation, reasonable attorneys' fees and expenses incurred in connection therewith] arising out of or resulting from Purchaser's failure to remit any amounts to tenants that Purchaser is obligated to so remit in accordance with this Section 4.C.[iii]).
(iv) If Seller has not received all Past Due Rents or other amounts owed to Seller within six months after the Closing Date, Seller, at its sole cost and expense, shall be entitled at any time after such date to commence such actions or proceedings not affecting possession or resulting in termination of the Lease in question as Seller shall desire to collect any such receivables Past Due Rents or other amounts owed to Seller by Tenants, and Purchaser shall cooperate with Seller in any such action at no cost to Purchaser.
(v) For purposes of this Section 4.C., the amount of any expense credited by one party to the other shall be deemed an expense paid under by that party. The terms and provisions of this Section 4.C. shall survive Closing and the Clay Contractsdelivery of the Deed.
(vi) Seller shall have the exclusive right to file and prosecute and/or appeal (or to continue any of the foregoing to the extent currently in existence) any tax complaint for the year in which Closing occurs and prior years. All refunds and other sums payable by reason of any such tax complaint shall be the property of Seller (except to the extent relating to taxes assessed for the year of Closing, notwithstanding that which refund shall be prorated on a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated per diem basis). Buyer assigns to Seller all rights which Buyer may have to file a tax complaint or pursue an appeal for such years. Buyer shall incur no cost or expense in connection with real estate closings for similar properties Seller's actions under this clause (vi). In the event Seller receives any refund or other amounts which are due to tenants of the Property in the locality in question; and
I. MLP accordance with their leases, Seller shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior promptly 10 remit such amounts to the Effective Time with respect to the Properties, and applicable tenants upon receipt by Seller. This provision shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be finalsurvive Closing.
Appears in 1 contract
Samples: Real Estate Sale Agreement (First Capital Institutional Real Estate LTD 4)
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to Seller shall prepare the Effective Time) Closing Statement of the prorations and a proposed statement of prorations, and other adjustments shall be prepared required by MRY3 in conformity with the provisions of this Agreement not less than three and submit it to Purchaser at least two (32) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective TimeClosing Date. The following items are to be prorated prorated, adjusted or adjusted, credited (as the case may require, appropriate) as of the Effective Timeclose of business on the Closing Date, it being understood that for purposes of prorations and adjustments, Seller shall be deemed to be the owner of the Property on the Closing Date and Purchaser shall be deemed to be the owner of the Property as of the date following the Closing Date:
A. 4.4.1 real estate and personal property taxes and assessmentsassessments attributable to the year in which the Closing occurs (on the basis of the most recent available tax xxxx if the current xxxx is not then available), it being understood by the parties hereto that all special assessments assessed against the Property and due and payable prior to the Closing Date shall be the sole responsibility of Seller;
B. 4.4.2 the rent and other sums (other than as set forth in Section 4.4.3 below) payable by tenants under the Commercial Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Seller by any tenant but uncollected as of the Effective Time Closing (collectively, the “Delinquent Amounts”) shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time such Delinquent Amounts to be remitted to MLP Seller if, as and when collected. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent Delinquent Amounts. In the event any Delinquent Amount is inadvertently omitted from such schedule, Seller shall not be deemed to have waived its rights to such Delinquent Amount. Purchaser shall include any and other sums owed by tenantsall Delinquent Amounts in the first bills submitted to the tenants in question after the Closing, and shall continue to do so for six (6) months thereafter. MRY3 Purchaser shall promptly remit to MLP Seller any such rent or other sums paid by scheduled tenants, notwithstanding Delinquent Amounts provided that a deficiency in the then current total rent due Purchaser is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Leasecreated thereby;
C. 4.4.3 the full amount of unapplied refundable security and pet deposits paid held by Seller under the Commercial Leases, to the extent unapplied, Leases together with any interest thereon if required by applicable law or otherwise; provided that (to required by the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenantsLeases;
D. 4.4.4 water, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, and fuel on hand (at cost plus sales tax); provided, however, that any assignable deposits with utility companies specifically allocable to shall remain 22043518.5 -7- the Properties (said assignable deposits being property of the Seller and shall not be prorated or credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Timeday immediately preceding the Closing Date);
E. 4.4.5 prepayments and amounts due and prepayments payable by Seller under the Other Service Contracts but excluding any lump sum or Equipment Leasesup front payments paid to Seller with respect thereto;
F. 4.4.6 assignable license and permit fees;; and
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due 4.4.7 other similar items of income and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, Property. Except with respect to general real estate and personal property taxes (which shall be entitled to reprorated upon the issuance of the actual bills, if necessary), any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time at Closing shall be re-prorated reprorated and finally adjusted as soon as practicable after the Effective TimeClosing Date but in no event later than ninety (90) days after Closing occurs; otherwise, subject to the provisions of Section 4.4.2 above, all prorations shall be final. In addition, notwithstanding anything to the contrary contained in this Section 4, Seller reserves the right (i) to meet with governmental officials and to contest any reassessment governing or affecting Seller’s obligations under Section 4.4.1 above, and (ii) to contest any assessment of the Property or any portion thereof and to attempt to obtain a refund for any taxes previously paid. Seller shall retain all rights with respect to any refund of taxes applicable to any period prior to the Closing Date. The obligations of Purchaser and Seller under Section 4.4 of this Agreement shall survive the Closing.
Appears in 1 contract
Samples: Real Estate Sale Agreement (Resource Real Estate Opportunity REIT II, Inc.)
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, adjusted (as appropriate) (the case may require, “Proration Items”) as of 11:59 p.m. Central Time on the Effective Time:day before the Closing Date and reprorated (if necessary) pursuant to Section 4.D(ii) below, it being understood that for purposes of prorations and adjustments, each Owner shall be deemed the owner of the applicable Company on the day before the Closing Date, and Xxxxx shall be deemed the owner of the Surviving Companies on the Closing Date, so that all income and expense attributable to any particular portion of the Property and allocable (a) to the period prior to the Closing Date shall be borne or credited to the applicable Owners (being CPLLC with respect to the Southdale Property and the Mervyn’s Property, BRE/Southridge Mall with respect to the Southridge Property and BRE/Southridge Mall Reit with respect to the Younkers Property, and as used in this Section 4.D, “Owners” shall refer to the applicable Owner or Owners), and (b) to the period on or after the Closing Date shall be borne or credited to Xxxxx or the applicable Surviving Company as hereinafter provided. Preliminary estimates of the Proration Items shall be set forth on a preliminary closing statement prepared by the Owners and submitted to Xxxxx for Xxxxx’ reasonable approval at least three (3) Business Days prior to the Closing Date.
A. real (a) Real estate and personal property taxes and assessments;
B. current installments of assessments affecting the rent Property which are payable by tenants the Companies in the calendar year in which Closing occurs (“Current Tax Year”) shall be prorated (on the basis of the most recent ascertainable assessment if the current xxxx is not then available), as of the Closing Date, on a cash basis, regardless of the year for which such taxes or assessments are assessed, except that (I) Xxxxx shall not receive a credit for any portion of the Current Tax Year real estate taxes levied against the Property for which any of the REA Parties or Anchors is responsible to pay the entity directly imposing the same as specified in any REA Document or Lease to which such REA Party or Anchor is a party and remains unpaid, and Xxxxx shall look solely to the REA Parties and Anchors for reimbursement of such unpaid portions when the same become due and payable in accordance with said respective agreements, and (II) with respect to the Southridge Real Property and Younkers Real Property, prior to January 31, 2005, Southridge Company or BRE/Grange, as applicable, shall pay the first installment of the 2004 Real Estate Property Tax bills and Xxxxx and the appropriate Surviving Company shall pay the remaining installments of the 2004 Real Estate Property Tax bills and notwithstanding anything set forth herein to the contrary, such real estate taxes with respect to the Southridge Real Property and the Younkers Property shall not be reprorated or further adjusted; provided, however, that with respect to the portion of the first installment of the 2004 Real Estate Property Tax xxxx for the Younkers Real Property paid by BRE/Grange, to the extent the same relates to the parking field, such amounts shall be included as an Expense recovery under Section 4.D(i)(d) hereof for the Commercial Leasesbenefit of BRE/Southridge. Taxes and assessments accrued to Closing but not payable during the calendar year in which Closing occurs shall not be prorated and shall be assumed and paid by Xxxxx and the Surviving Companies.
(b) The “minimum” or “base” rent and estimated payments of “Percentage Rent” (hereinafter defined) payable by Tenants; provided provided, however, that rent and all other sums which are due and payable to MLP the Owners or the Companies as of the Closing Date by any tenant Tenant but uncollected as of the Effective Time Closing Date shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Xxxxx shall cause (or cause the Surviving Companies to cause) the rent and other sums for the period prior to the Effective Time Closing Date to be remitted to MLP the Owners if, as and when collectedcollected (subject to the following sentence, including any penalties and interest permitted by the applicable Lease to be charged to the Tenant for late payment). On All payments from Tenants on account of rent or otherwise received after the Effective TimeClosing Date by the Owners, MLP Xxxxx or the Surviving Companies shall be applied as specified in writing by the Tenant or if not specified (i) first, in payment of rents for the month in which the Closing Date occurs (the “Closing Month”), (ii) second, in payment of rents for the month following the Closing Month if then due and payable, (iii) third, in payment of rents in arrears as of the Closing Date for the month preceding the Closing Month, (iv) fourth, in payment of rents for the period following the Closing Month if then due and payable and (v) fifth, in payment of rents in arrears as of the Closing Month that have not been paid pursuant to clause (iii) above. At Closing, the Owners shall deliver to MRY3 Xxxxx a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenantsTenants (the “Delinquency Schedule”). MRY3 Xxxxx shall promptly remit cause the Surviving Companies to MLP include the amount of such rent and other sums in the bills thereafter submitted to the Tenants in question after the Closing. Xxxxx shall cause the Surviving Companies to use commercially reasonable efforts to collect such past due sums, but the Surviving Companies shall not be obligated to commence a law suit to collect any such rent sums or other to evict any Tenant for the failure to pay any such sums, and Xxxxx shall deliver such past due sums paid to the Owners as the same are collected by scheduled tenantsXxxxx or the Surviving Companies, notwithstanding that a deficiency net of commercially reasonable out of pocket third party costs of collection approved in advance by the Owners (which approval shall not be unreasonably withheld), and which third party costs shall be charged against amounts collected and charged to the parties hereto in the then current rent proportion in which each is thereby createdentitled to the proceeds of such collections. MRY3 The Owners shall xxxx tenants who owe rent for periods retain the right to commence a lawsuit after the Closing to collect any such sums and other amounts owed to the Owners (or any Company with respect to the period prior to the Effective Time on a monthly basis for six consecutive months Closing Date) in accordance with rights previously retained by Owners or pursuant to the Rent Agreement, provided the Owners may not seek to terminate any Lease or evict any Tenant and shall not commence any such suit until at least ninety (90) days following the Effective TimeClosing Date. For Rents prorated under this Section 4.D(i)(b) shall include amounts due MLP characterized as rent under those certain agreements with Store Financial dated September 2, 2004 (with respect to Southridge and Southdale).
(c) To the extent not collected within thirty set forth on the schedule of uncollected rent described in Section 4.D(i)(b) above, “percentage” or “overage” rent (30“Percentage Rent”) days that is (I) attributable to any Percentage Rent lease year in which the Closing Date falls and (II) not yet determinable as of the Closing Date (collectively, “Current Year Percentage Rent”), shall be prorated as follows: promptly upon receipt by Xxxxx or the Surviving Companies, Xxxxx shall furnish (or cause the Surviving Companies to furnish) to the Owners copies of all sales reports from Tenants relative to Current Year Percentage Rent, including, without limitation, all sales reports with respect to any Tenants whose Percentage Rent lease years have expired as of the Closing but whose sales reports were not delivered to the applicable Owner or Company as of the Closing Date and sales reports of any Tenants whose Percentage Rent lease years expire after the Effective TimeClosing, MLP shall have and the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. the full amount of security deposits paid under any Current Year Percentage Rent shall be payable in accordance with such Tenant’s Lease as existing as of the Commercial LeasesClosing Date, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that and Xxxxx shall (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. water, electric, telephone and all other utility charges with respect not paid to the Properties, and any assignable deposits with utility companies specifically allocable Owners by way of estimated payments prior to Closing) pay (or cause the Surviving Companies to pay) to the Properties Owners, net of any commercially reasonable out-of-pocket third party costs of collection approved in advance by the Owners (said assignable deposits which approval shall not be unreasonably withheld), a portion of such Percentage Rent based upon the apportionment being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time);
E. amounts due and prepayments under the Other Contracts or Equipment Leases;
F. assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected made as of the Effective Time Closing Date (in proportion to the relative number of days in the subject Percentage Rent lease year occurring prior and subsequent to the Closing Date), promptly after reconciliation with the applicable Tenant at the end of the subject Percentage Rent lease year. The Owners shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable retain any Current Year Percentage Rent for the period prior to the Effective Time Closing Date already collected from Tenants under the Leases prior to be remitted Closing, and Xxxxx shall promptly pay to MLP ifthe Owners any Current Year Percentage Rent collected by Xxxxx or the Surviving Companies in the month in which Closing occurs; provided, as and when collected. On however, the Effective TimeOwners shall make any necessary adjusting payment to Xxxxx, MLP shall deliver due to MRY3 a schedule (prepared any over-collection by MLP as the Owners of the most recent date availableCurrent Year Percentage Rent, within fifteen (15) days after presentment to, and approval by, the Owners (which approval shall not be unreasonably withheld or delayed) of all such past due but uncollected receivables. MRY3 Xxxxx’ calculation and Xxxxx shall promptly remit to MLP make any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior necessary adjusting payment to the Effective Time with respect Owners, due to any under-collection by the PropertiesOwners, within fifteen (15) days after presentment to, and approval by, the Owners (which approval shall not be entitled to any refunds in connection with the termination unreasonably withheld or delayed) of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be final.Xxxxx’
Appears in 1 contract
Samples: Merger Agreement (Mills Corp)
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to Sellers shall prepare the Effective Time) Closing Statement of the prorations and a proposed statement of prorations, and other adjustments shall be prepared required by MRY3 in conformity with the provisions of this Agreement not less than and submit it to Purchaser at least three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective TimeClosing Date. The following items are to be prorated prorated, adjusted or adjusted, credited (as the case may require, appropriate) as of the Effective Timeclose of business on the Closing Date, it being understood that for purposes of prorations and adjustments, Sellers shall be deemed the owner of the Property on such day and Purchaser shall be deemed the owner of the Property as of the day after the Closing Date:
A. 4.4.1 real estate and personal property taxes and assessmentsassessments (on the basis of the most recent ascertainable tax xxxx if the current xxxx is not then available);
B. 4.4.2 the rent payable by tenants under the Commercial Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Sellers by any tenant but uncollected as of the Effective Time Closing shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing to be remitted to MLP Sellers if, as and when collected. On the Effective TimeAt Closing, MLP Sellers shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 Purchaser shall include the amount of such rent and other sums in the first bills thereafter submitted to the tenants in question after the Closing, and shall continue to do so for twelve (12) months thereafter. Purchaser shall promptly remit to MLP Sellers any such rent or other sums paid by scheduled tenants, notwithstanding that a deficiency in ;
4.4.3 the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent amount of unapplied security deposits under the Leases and any interest accrued thereon for periods prior the benefit of the tenant thereunder pursuant to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant Lease or terminate any Commercial Leaseapplicable law;
C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. 4.4.4 water, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, and fuel on hand (at cost plus sales tax); provided, however, that any assignable deposits with utility companies specifically allocable to shall remain the Properties (said assignable deposits being property of the Seller and shall not be prorated or credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Timeday immediately preceding the Closing Date);
E. 4.4.5 amounts due and prepayments under the Other Contracts or Equipment LeasesService Contracts;
F. 4.4.6 assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees 4.4.7 other similar items of income and other costs associated with the maintenance or termination expenses of any insurance policies maintained by MLP prior to the Effective Time operation. Except with respect to the Properties, general real estate and personal property taxes (which shall be entitled to reprorated upon the issuance of the actual bills, if necessary), any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time at Closing shall be re-prorated reprorated and finally adjusted as soon as practicable after the Effective TimeClosing Date; otherwise, subject to the provisions of Section 4.4.2 above, all prorations shall be final.
Appears in 1 contract
Samples: Real Estate Sale Agreement (Boston Capital Real Estate Investment Trust Inc)
Closing Prorations and Adjustments. (a) 7.3.1 A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, prorations and other adjustments shall be prepared by MRY3 MHC in conformity with the provisions of this Agreement and submitted to Contributor for review not less than three (3) business days prior to the Effective TimeClosing Date. For purposes of prorations, each Assignment MHC shall be deemed to have occurred as the owner of 12:01 a.m. the Property or the AP Interests acquired by MHC hereunder on the date of Closing Date. In addition to proration and adjustments that may otherwise be provided for in this Agreement, the Effective Time. The following items are to shall be prorated or adjusted, adjusted (as the case may require, requires) as of the Effective TimeClosing Date:
A. 7.3.1.1 real estate and personal property taxes and assessmentsassessments (if the amount of taxes or assessments for the year in question is not known, then the same shall be initially prorated on the basis of one hundred three percent (103%) of the most recent ascertainable bill(x), and shall be re-prorated upon issuance of the actual bill xxxrefor to effectuate the actual proration);
B. the rent 7.3.1.2 all amounts payable by the tenant under any and all ground leases the leaseholds under which constitute all or any portion of the Premises of the Property, including any and all rents, both current and delinquent (including base rent, additional rent, and percentage rent), operating expenses, excess tenant improvements, security deposits, and other tenant charges.
7.3.1.3 all rents, revenues, and other income from the Property, both current and delinquent, including base rent, additional rent, percentage rent, reimbursements for operating expenses and excess tenant improvements, and other tenant charges, and all prepaid rent. The apportionment of rents and other amounts payable by the tenants under the Commercial Leases; provided that rent Leases and other income shall be upon the basis of such rents and other amounts and other income actually received by Contributor. As between Contributor and MHC, all payments received by MHC subsequent to the Closing from a tenant, licensee, concessionaire, or other person with respect to all or any portion of the Property shall be applied first against the most recently accrued obligation or obligations of the payor and any and all other sums which are due reasonable costs and payable to MLP expenses of collection incurred by MHC. If any tenant but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due such rents and shall cause the rent other amounts and other sums for income are actually received by MHC, upon its receipt of such rents and other amounts and other income, MHC shall pay to Contributor its share thereof, net of MHC's costs of collection; provided, however, that if such rents and other amounts and other income relate to a Community with respect to which MHC has acquired AP Interests, then Contributor's share (subject to the third sentence of this Section 7.3.1.3) shall be the product of (a) its former general partner or joint venture percentage interest in the applicable Affiliated Partnership and (b) that portion of such rents and other amounts and other income, net of MHC's reasonable costs of collection, applicable to the period prior to the Effective Time Closing Date. MHC shall make a good faith effort and attempt to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all collect any such past due but uncollected rent rents and other sums owed by tenants. MRY3 amounts and other income not apportioned at the Closing that is for the benefit of Contributor; however, MHC shall promptly remit not be obligated to MLP take any such rent or other sums paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant legal action or terminate any Commercial Leaselease or any tenant's right to possession;
C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. 7.3.1.4 water, electric, telephone and all other utility charges with respect to the Properties, and any assignable deposits with utility companies specifically allocable companies, but only to the Properties extent the accounts therefor cannot be changed over to MHC's (said assignable deposits being credited to MLPor MHC's designee's) name as of the Closing Date (to the extent possible, utility prorations will (if necessary) shall be handled by meter readings on the Effective TimeClosing Date);
E. 7.3.1.5 fuel charges, fuel on hand (at cost plus sales tax);
7.3.1.6 amounts due and prepayments under the Other Service Contracts or Equipment Leasesbeing assumed by MHC;
F. 7.3.1.7 assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. 7.3.1.8 other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in questionitems; and
I. MLP 7.3.1.9 all interest, principal and other required payments relating to the Mortgage Loans, together with any escrows on deposit with any Lender, which shall be responsible held for paying all premiums, fees and other costs associated with the maintenance or termination benefit of any insurance policies maintained by MLP prior to MHC after the Effective Time Closing. Except with respect to the Propertiesreal estate and personal property taxes which are to be re-prorated as aforesaid, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on at the Effective Time Closing shall be re-prorated and finally adjusted as soon as practicable within ninety (90) days after the Effective TimeClosing Date; otherwise, otherwise all prorations shall be finalfinal at the Closing.
7.3.2 MHC shall receive a credit against the Acquisition Value for an amount equal to (1) the aggregate of each tenant security deposit and any other deposit(s) which the owner of the Property is obligated to return to the party which shall have deposited the same (if such deposit shall not have been applied pursuant to the terms of a lease or other agreement or applicable law), together with (2) any and all interest which shall have then accrued with respect to such deposits and which, pursuant to the terms of a lease or other agreement or Applicable Law, the owner of the Community may be obligated to pay to the party which made the deposit (if such interest is not applied to the payment of rent or other amounts owed to the owner in accordance with the terms of such lease, other agreement or Applicable Law);
7.3.3 With respect to the Mortgage Loans:
7.3.3.1 MHC shall pay any assumption fees charged by the lender under any Mortgage Loan with regard to the assumption by MHC of such Mortgage Loan in connection with the acquisition by MHC of the Community which remains encumbered by such Mortgage Loan following the Closing; and
7.3.3.2 MHC shall receive a credit for any and all prepayment fees or penalties that would be payable in connection with a prepayment of the Mortgage Loans, whether or not the Mortgage Loans are actually so prepaid at Closing. Pursuant to the Basic Agreement, MHC and Contributor acknowledge and agree that the Mortgage Loans encumbering certain Communities have smaller prepayment fees if prepayment is made during a 15-day period commencing on such loan's anniversary; in the case of any such Mortgage Loan, MHC and Contributor agree that the calculation of the prepayment fee payable in connection with any such loan shall be made as if such loan is being prepaid during the earliest such 15-day period.
7.3.4 Notwithstanding anything to the contrary contained in this Agreement, Contributor shall be responsible for, and at or prior to the Closing shall pay or cause to be paid, all amounts due through the Closing for employees' salaries, vacation pay, withholding and payroll taxes, and other compensation and benefits, and any management fee affecting the Property and any Affiliated Community. If and to the extent Contributor or the appropriate Affiliated Partnership has not paid all such amounts as of the Closing, MHC shall receive a credit against the Acquisition Value of the applicable Community in an amount equal to the amount not paid. Contributor shall terminate, or cause the relevant Affiliated Partnership to terminate, as of the Closing the employment of all employees who work at the Property and any Affiliated Community. Contributor shall indemnify and hold MHC harmless from and against any and all obligations and other matters relative to any terminated employees and, with respect to any employees not terminated, applicable to the period prior to the Closing, including reasonable attorneys' fees incurred by MHC in connection therewith. MHC, in its sole and absolute discretion, may rehire any employees whose employment was terminated pursuant to this Section 7.3.4.
7.3.5 Contributor reserves the right to pay to MHC in Cash at the Closing the amount of any net proration amount that would otherwise be a credit to MHC against the Property Exchange Consideration, in lieu of such credit.
7.3.6 Notwithstanding anything to the contrary contained herein, with respect to the AP Interests, the prorations, and the credit due MHC, shall be calculated as though MHC were acquiring the applicable Community from the Affiliated Partnership; provided, however, that any credit due to Contributor in connection with such prorations shall be the product of (a) Contributor's general partner or joint venture percentage interest in the applicable Affiliated Partnership and (b) the amount of the credit which would be due the Affiliated Partnership if the Affiliated Partnership were selling the Community to MHC and the prorations were calculated in accordance with this Section 7.3.
Appears in 1 contract
Samples: Contribution Agreement (Manufactured Home Communities Inc)
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, prorations and other adjustments shall be prepared by MRY3 Seller (for each Property being conveyed at a Closing) in conformity with the provisions of this Agreement and submitted to Purchaser for review and approval not less than five (5) Business Days prior to the Initial Closing Date and three (3) business days Business Days prior to any Subsequent Closing Date (the Effective Time"CLOSING STATEMENT"). For purposes of prorations, each Assignment Purchaser shall be deemed to have occurred as the owner of 12:01 a.m. the respective Property on the date of Closing Date. In addition to other adjustments that may be provided for in this Agreement, the Effective Time. The following items with respect to each Property are to be prorated or adjusted, as the case may require, for each Property as of the Effective TimeClosing Date for such Property:
A. (a) real estate and personal property taxes and assessments (initially prorated on the basis of 100% of the most recent ascertainable xxxx, but subject to reproration upon issuance of the actual bills therefor to effectuate the actual proration); to the extent that Seller has escrowed any real estate taxes with the Landlord under a Lease, Seller shall assign all rights under such escrow to Purchaser and, provided the amount so escrowed is confirmed by such Landlord in writing or is confirmed by other reasonably satisfactory substantiation, Seller shall be credited accordingly in connection with the proration of taxes or assessments;
B. . Real estate taxes shall be apportioned on the rent basis of the fiscal period for which assessed. If as of the applicable Closing Date any of the Properties or any portion thereof shall be affected by any special or general assessments which are or may become payable by tenants under in installments of which the Commercial Leases; provided that rent first installment is then a lien and all other sums has become payable, Seller shall be responsible to pay the unpaid installments of such assessments which are due prior to the applicable Closing Date and payable Purchaser shall be responsible to MLP by any tenant but uncollected pay the installments which are due on or after the applicable Closing Date and Purchaser or Seller shall make a payment to the other to the extent necessary so that the total amount of such special or general assessment is apportioned as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause provided above;
(b) the rent and other sums sums, including, without limitation, monthly installments payable by Seller on account of operating costs and taxes, payable by Seller under the Leases. Any percentage rent owed under any Lease with respect to any time period prior to the applicable Closing shall be paid by Seller. To the extent that Seller has paid to or escrowed with the Landlord under any Lease any monthly estimate of taxes or other operating expenses, and the Landlord refunds or credits to Purchaser or its designee (after the applicable Closing) a portion of such estimated or escrowed payments resulting from a reconciliation of the actual expenses or taxes for the period prior to the Effective Time to be remitted to MLP ifsuch Closing, as and when collected. On the Effective Time, MLP Purchaser shall deliver to MRY3 Seller its pro-rata share of such refund within twenty (20) days of receipt of said refund. In the event that a schedule Landlord is owed any additional funds as a result of any deficiency shown in such reconciliation for the period of time prior to the applicable Closing, Seller shall deliver to Purchaser the deficient funds within twenty (prepared by MLP as 20) days of receipt of notice from Purchaser, subject to any rights of the most recent date availabletenant under the Lease to contest such determination by the Landlord (which rights shall be retained and shall be exercisable by Seller) with respect to any reconciliation for the period of all such past time prior to the applicable Closing. Seller shall retain, subsequent to any Closing with respect to a Leased Property, any other rights, claims and remedies against the Landlord with respect to any refunds, rebates or credits due but uncollected rent and other sums owed by tenants. MRY3 shall promptly remit from the Landlord to MLP Seller (as a tenant under the Lease) with respect to any such rent or other sums paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time on a monthly basis Closing Date (including, without limitation, audit rights and rights to claim adjustments from the Landlord for six consecutive months following overcharged amounts of additional rent under the Effective Time. For Lease), and Purchaser shall promptly pay to Seller any such amounts due MLP not collected within thirty received by (30or credited for the benefit of) days Purchaser after the Effective Time, MLP shall have Closing Date and attributable to periods prior to the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial LeaseClosing Date;
C. the full amount of (c) security deposits paid under the Commercial Leases, and not theretofore applied, shall be credited by Purchaser to Seller on the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenantsClosing Date;
D. (d) water, electric, telephone and all other utility and fuel charges with respect shall be prorated ratably on the basis of the last ascertainable bills (and reprorated upon receipt of the actual bills or invoices) unless final meter readings and final invoices can be obtained. To the extent practicable, Seller shall cause meters for utilities to be read not more than ten (10) Business Days prior to the Properties, and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time)applicable Closing Date;
E. amounts due and prepayments under the Other Contracts or Equipment Leases;
F. (e) assignable license and permit fees;
G. amounts receivable in connection (f) deposits made by Seller with utility companies, Governmental Entities or any other person, which deposits shall be assigned to Purchaser at Closing and shall be credited to Seller, provided, however, that Seller shall have received written notice from the Clay Contracts provided party holding such deposits confirming the amount of such deposits and stating that amounts receivable no default has occurred by Seller and no other condition has occurred which are due and payable to MLP under the Clay Contracts but uncollected as would prohibit all or any portion of such deposit from being refunded (or such other substantiation of the Effective Time foregoing facts reasonably satisfactory to Purchaser). If Seller is unable to obtain such a notice or provide such other substantiation, amounts on deposit with utility companies shall not be adjustedprorated; provided, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period however, that prior to the Effective Time to be remitted to MLP ifClosing, as Purchaser shall substitute its own deposit for any amounts on deposit with utility companies and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and Seller shall be entitled to any refunds in connection with arrange for a refund of Seller's deposit from such utility companies;
(g) the termination rent and other sums, including, without limitation, monthly installments payable by subtenants on account of said policies. The net amount of any prorations operating costs and taxes payable under the Approved Subleases, subject to Section 4.5 below;
(h) security deposits paid under the Approved Subleases, and not theretofore applied, shall be paid in cash credited by Seller to Purchaser on the Effective Time applicable Closing Date; and
(i) other operating expenses and any other customarily apportioned items. Except with respect to MLP or MRY3general real estate taxes (which shall be reprorated upon the issuance of the actual bills, as the case may beif necessary), by the other party. Any any proration which must be estimated on the Effective Time at a Closing shall be re-prorated reprorated and finally adjusted as soon as practicable after the Effective Timeapplicable Closing, with any refunds payable to Seller or Purchaser to be made as soon as practicable; otherwise, otherwise all prorations shall be final. The provisions of this Section 4.3 shall survive the Closings.
Appears in 1 contract
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjustedadjusted (as appropriate) as of 11:59 p.m. on the day prior to the Closing Date, as it being understood that for purposes of prorations and adjustments, Seller shall be deemed the case may require, owner of the Property through such time and Purchaser shall be deemed the owner of the Property as of the Effective Timeday of the Closing Date:
A. (a) real estate and personal property taxes (on the basis of the most recent ascertainable tax xxxx if the current xxxx is not then available and assessmentstaking into account any discount for early payment if Seller has received said discount for 1996). The parties shall also prorate special assessments for incompleted improvements and completed improvements (but only to the extent the special assessments for completed improvements are chargeable to the Tenants ["Chargeable Assessments"]. Seller shall pay at Closing the balance of any special assessments for completed improvements other than Chargeable Assessments. Once the tax xxxx for the year of closing is received, taxes may be reprorated taking into account the tenant's contribution received in accordance herewith at election of Seller or Purchaser and taking into account any discount available for early payment;
B. (b) the "minimum" or "base" rent payable by tenants under the Commercial Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Seller by any tenant but uncollected as of the Effective Time Closing shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing to be remitted to MLP Seller if, as and when collected. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 Purchaser shall promptly remit to MLP any include the amount of such rent or and other sums paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby createdsecond bills thereafter submitted to the tenants in question after the Closing, and shall continue to do so for three (3) additional months thereafter. MRY3 Seller shall xxxx have the right to pursue collection of such past due rents after said three (3) month period, but Seller agrees not to bring any actions against such delinquent tenants who owe for eviction or dispossession. Notwithstanding anything contained herein to the contrary, with respect to delinquent base rent for periods prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days Closing Date, Purchaser shall remit such delinquent rent to Seller only after the Effective Timetenant owing such delinquent rent is current on its base rent obligations for the period of Purchaser's ownership. Percentage or overage rent and reimbursement of real estate taxes payable, MLP common area maintenance, mall maintenance, utility charges, water and sewer charges, insurance and merchant's association dues and assessments and all other charges to or contributions by tenants under the Leases shall be prorated as follows: with respect to percentage rents, and upon receipt by Purchaser, Purchaser shall furnish to Seller copies of all sales reports from tenants relative thereto, including, without limitation, all sales reports with respect to any tenants whose lease years have expired as of the right Closing but whose sales reports were not available on Closing and sales reports of any tenants whose lease year expires after the Closing, and the amount of any rents (including, without limitation, percentage rents), reimbursement or contribution to xxx to collect same, but in no event may MLP seek to evict be made by any tenant shall be made in accordance with such tenant's Lease as now existing and Purchaser shall promptly pay to Seller a pro-rata portion of such percentage rents, reimbursement or terminate contribution, based upon apportionment being made as of the Closing Date, promptly after the date when such percentage rents, reimbursement or contribution is received (net of any Commercial offsets taken by tenants) from the tenant. Purchaser shall conduct a reconciliation of contributions of real estate taxes, common area maintenance, mall maintenance, utility charges, water and sewer charges, insurance and merchants' association dues and assessments and all other changes to or contributions by tenants under Leases for 1997 and Seller shall furnish any additional available information requested by Purchaser in connection with preparing a 1997 reconciliation.
(c) With respect to tenant improvement costs, leasing commissions, free rent periods or concessions relating to Leases executed after the date hereof in accordance with Section 14.J.(b), or relating to any modification, amendment, restatement or renewal thereto, executed after the date hereof in accordance with Section 14.J.(b) (said new leases, modifications, amendments, restatements and renewals being collectively referred to as a "New Lease"), Seller and Purchaser agree that such costs, free rent periods, concessions and commissions shall be prorated over the term of any New Lease with Seller being responsible for a portion of such costs, free rent periods, concessions and commissions based on the ratio of base rent payments received by Seller through the Closing Date to the total base rent payable over the term of the particular New Lease.
(d) Seller shall deliver a separate payment to Purchaser at Closing in the amount of refundable security deposits under the Leases as set forth in Exhibit S;
C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable lawe) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. water, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, and any assignable deposits with utility companies specifically allocable to the Properties fuel on hand (said assignable deposits being credited to MLPat cost plus sales tax) (to the extent possible, utility prorations will be handled by meter readings on the Effective Timeday immediately preceding the Closing Date) (Seller shall retain any deposits with utility companies);
E. (f) amounts due and prepayments under the Other Contracts or Equipment LeasesService Contracts;
F. (g) assignable license and permit fees;
G. (h) other similar items of income and expenses of operation; and
(i) To the extent there remains at Closing any unsatisfied tenant improvement obligation, concessions, free rent periods or leasing commission set forth in Exhibit O, Seller shall credit Purchaser for the amount of said obligations and Purchaser shall assume the satisfaction of such obligations.
(ii) Notwithstanding the foregoing, Seller shall in all events be entitled to retain amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due paid by tenants for real estate taxes and payable to MLP under the Clay Contracts but uncollected assessments and common area expenses as of the Effective Time Closing Date, such sums to be prorated if paid for a portion of the month in which the Closing occurs.
(iii) Notwithstanding anything to the contrary contained in this Section 5, Seller reserves the right, subject to Seller not taking any actions which might adversely affect Purchaser's prospective real estate tax assessments or Purchaser's future rights (a) to meet with governmental officials and to contest any reassessment governing or affecting Seller's obligations under Section 5.C.(i) above and (b) to contest any assessment of the Property or any portion thereof and to attempt to obtain a refund for any taxes previously paid. Seller shall not be adjusted, but MRY3 shall use diligent efforts retain all rights with respect to collect said past-due amounts and shall cause such amounts receivable for the any refund of taxes applicable to any period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be finalClosing Date.
Appears in 1 contract
Samples: Real Estate Sale Agreement (First Capital Income Properties LTD Series Xi)
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, adjusted (as the case may require, appropriate) as of the Effective TimeClosing Date, it being understood that for purposes of prorations and adjustments, Purchaser shall be deemed the owner of the Property as of 12:00 a.m. on the Closing Date and Seller shall be deemed the owner of the Property as of 11:59 p.m. on the day prior to the Closing Date; provided, however, that in the event that Seller and Seller's mortgage lender receive the net funds from the Escrowee after 1 PM (Denver, Colorado time) on the Closing Date, then the Closing Date shall be deemed to be the following business day and all prorations and adjustments shall be recalculated with the Purchaser deemed the owner of the Property as of the new Closing Date and Seller deemed the owner of the Property as of the day before the new Closing Date:
A. real (a) Real estate and personal property taxes and assessments (initially on the basis of the tax xxxx applying to the period through Closing, or if such tax xxxx is not available, on the basis of the most recent ascertainable tax xxxx). Notwithstanding any local custom regarding the proration of taxes and assessments;
B. , taxes and assessments shall be deemed to apply to the rent payable by tenants under fiscal year(s) described on the Commercial Leases; provided that rent most recent tax xxxx, regardless of when such taxes and all other sums which assessments are due and payable to MLP by payable;
(b) Base rent ("Base Rent") and any tenant but uncollected other amounts (including without limitation charges for operating expenses) due under the Leases paid for the billing period in progress on the Closing Date. "Receivables," as of the Effective Time shall not be adjustedused in this Agreement, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent means all rental payments, expense reimbursements and other sums for the monetary obligations of any kind due and owing or to become due and owing by tenants to Seller with respect to any period prior to the Effective Time to be remitted to MLP ifClosing Date under the Leases. At Closing, as and when collected. On the Effective Time, MLP Closing Statement shall deliver to MRY3 contain a schedule (prepared the "Closing Delinquency Schedule") of all uncollected Receivables. Purchaser shall undertake reasonable efforts on behalf of Seller to collect all Receivables for a period of four (4) months from the Closing Date (which shall include the submission of monthly invoices and follow-up invoices), it being agreed that any monies received by MLP Purchaser from and after the Closing Date from any person liable for any portion of the Receivables (including, without limitation, payments by tenants for operating expenses in excess of their estimated payments) shall be applied as follows: first to any current sums and arrearages owed to Purchaser (relating to billing periods after the billing period in progress as of the most recent date availableClosing Date), second to the payment of monies owed to Seller and Purchaser for the billing period in progress on the Closing Date, and last to the balance of the Receivables. All monies received by Purchaser which are to be applied pursuant to the preceding sentence shall be held in trust by Purchaser for the benefit of the party entitled thereto and remitted to such party promptly after receipt in accordance with the preceding sentence. Notwithstanding the foregoing, Seller shall retain the sole right to collect (in such manner as it shall deem appropriate) of all such past Receivables due but uncollected rent and other sums owed by tenants. MRY3 shall promptly remit to MLP any such rent or other sums paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx from tenants who owe rent for periods have vacated the Property prior to the Effective Time on a monthly basis for six consecutive Closing Date, and Purchaser shall not be required to undertake any collection efforts with respect to those Receivables. If, within four (4) months following the Effective Time. For amounts due MLP Closing Date, any of the Receivables to be collected by Purchaser have not been collected within thirty (30) days after the Effective Timeand paid to Seller, MLP shall have the right to xxx then Seller may undertake its own efforts to collect samethose Receivables, including the commencement of litigation and other proceedings (but in no event may MLP Seller shall not seek to evict any tenant or terminate any Commercial Lease;), and all sums collected by Seller as a result of such litigation (after payment of all costs and expenses) shall be applied in full satisfaction of the applicable Receivables. Purchaser and Seller shall reasonably cooperate with each other in the collection of Receivables and shall execute any documents reasonably requested by the other to collect those Receivables.
C. (c) with respect to tenant improvement costs and/or allowances or leasing commissions relating to (1) any new leases, or any modification, amendment, restatement or renewal of existing Leases (each, a "New Lease", and collectively, the full "New Leases") executed in accordance with the provisions contained in Section 10(L) below between the date of this Agreement and prior to the expiration of the Inspection Period, and (2) New Leases executed during the period between the expiration of the Inspection Period and Closing with the consent of Purchaser granted (or deemed to be granted) in accordance with Section 10(L) below, Seller and Purchaser agree that such tenant improvement costs, allowances and leasing commissions shall be prorated over the initial term of any such New Lease with Seller being responsible for a portion of such tenant improvement costs, allowances and leasing commissions based on the ratio of Base Rent payments payable to Seller through 11:59 PM of the day before the Closing Date to the total Base Rent payable over the initial term of the particular New Lease and, in the event that Seller has paid such tenant improvement costs, allowances and/or leasing commissions prior to Closing, Purchaser shall reimburse Seller at Closing for the amount of security deposits any such tenant improvement costs, allowances and/or leasing commissions paid by Seller, based on the above-described proration. Seller and Purchaser agree that (i) Seller shall be responsible for all tenant improvement costs and/or allowances or leasing commissions set forth on EXHIBIT S attached hereto, (ii) in the event that any amounts due under EXHIBIT S are unpaid as of Closing, Seller shall credit Purchaser at Closing for any such unpaid amounts, and (iii) Purchaser shall be responsible for paying all tenant improvement costs, allowances and/or leasing commissions for which it receives a credit at Closing up to the amount of the credit.
(d) the amount of the Security Deposits held by Seller as of the Closing Date, if any, with Purchaser receiving a credit at Closing against the Purchase Price in the amount of such Security Deposits plus interest earned thereon, if such interest must be paid to tenants under the Commercial LeasesLeases or applicable law (and Seller shall transfer to Purchaser at Closing, to the extent unappliedtransferable, together with interest thereon if required any Security Deposit held by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations Seller as of the tenantsClosing Date in the form of a letter of credit);
D. (e) water, sewer, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, fees and use charges, fuel on hand (at cost plus sales tax), and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Timeday immediately preceding the Closing Date);
E. (f) amounts due and prepayments paid or payable under the Other Contracts or Equipment LeasesService Contracts;
F. (g) assignable license and permit fees;; and
G. (i) other similar items and expenses of operation.
(ii) Notwithstanding the foregoing, and subject to Sections 4(C)(iii), Seller shall in all events be entitled to retain amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due paid by tenants for reimbursement of real estate taxes and payable assessments, common area maintenance, mall maintenance, utility charges, water and sewer charges, insurance and merchant's association dues and assessments and all other charges to MLP or contributions by tenants under the Clay Contracts but uncollected Leases other than Base Rent (such assessments, costs, expenses, dues and charges being referred to herein as the "Tenant Reimbursable Expenses", and the amounts payable by tenants under the Leases with respect to the Tenant Reimbursable Expenses being referred to herein as the "Tenant Reimbursements") as of the Effective Time shall not be adjustedClosing.
(iii) As soon as practical after Closing, but MRY3 in no event later than sixty (60) days after Closing (except for real estate and personal property taxes and assessments and Tenant Reimbursable Expenses, which shall use diligent efforts be reprorated not later than April 30, 2000), Seller and Purchaser shall, with respect to collect said past-due amounts and shall cause any such amounts receivable for the period prior prorated or adjusted at Closing pursuant to the Effective Time to be remitted to MLP ifSection 4(C)(i) above based on estimates or formulae, as applicable, jointly determine and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as reapportion such amounts in accordance with Section 4(C)(i) above upon determination of the most recent date available) actual costs or expenses with respect thereto. In the event that the amount credited to Purchaser by Seller at Closing exceeds the amount of all the credit that Purchaser should have received had such past due but uncollected receivables. MRY3 actual amounts been available at Closing, Purchaser shall promptly remit such excess amount to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP Seller. Purchaser shall be responsible for paying all premiumsthe reconciliation with tenants of Tenant Reimbursements and Tenant Reimbursable Expenses for the calendar year 1999. In the event that the amount credited to Seller by Purchaser at Closing exceeds the amount of the credit that Seller should have received at Closing had such actual amounts been available at Closing, fees and other costs associated with Seller shall promptly remit such excess amount to Purchaser. In the maintenance event that, after such reapportionment: (1) the amount of Tenant Reimbursements retained by Seller as provided in Section 4(C)(ii) above is less than the amount of Tenant Reimburseable Expenses paid by Seller (whether by direct payment by Seller or termination of any insurance policies maintained by MLP prior to the Effective Time proration as provided in Section 4(C)(i) above) with respect to 1999 and the Propertieslandlord under the Leases is entitled to recover such difference under the terms of Leases, then Purchaser shall xxxx such tenants, provide Seller with copies of such bills upon issuance, and collect such amounts on behalf of Seller and, upon receipt, remit such collected amounts to Seller; and (2) the amount of Tenant Reimbursements collected by Seller for 1999 and retained by Seller as provided in Section 4(C)(ii) above exceeds the amount of Tenant Reimburseable Expenses paid by Seller (whether by direct payment by Seller or by proration as provided in Section 4(C)(i) above) with respect to 1999 then Seller shall promptly remit such excess amounts to the Purchaser; provided, that to the extent any such excess amounts are otherwise payable to a tenant owing Receivables, Seller may offset the amount otherwise payable to Purchaser for such tenant against Receivables owing to Seller by such tenant, remitting any remaining amount to Purchaser. Purchaser shall be entitled obligated to promptly remit all amounts received from Seller to the particular tenants in question (and Purchaser shall indemnify, defend and hold Seller, its beneficiaries, their partners, and their respective directors, officers, employees and agents, and each of them, harmless from and against any refunds losses, claims, damages and liabilities [including, without limitation, reasonable attorneys' fees and expenses incurred in connection therewith] arising out of or resulting from Purchaser's failure to remit such amounts to the tenants in accordance with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be finalthis Section 4(C)(iii).
Appears in 1 contract
Samples: Real Estate Sale Agreement (First Capital Income & Growth Fund Series Xii)
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, adjusted (as the case may require, appropriate) as of the Effective Timeclose of business on the Closing Date and reprorated (if necessary) pursuant to Section 4(C)(ii) below, it being understood that for purposes of prorations and adjustments, Seller shall be deemed the owner of the Property on the day before the Closing Date and Purchaser shall be deemed the owner of the Property on and after the Closing Date:
A. (a) real estate and personal property taxes and assessmentsassessments (on the basis of the most recent ascertainable tax xxxx if the current xxxx is not then available);
B. (b) the "minimum" or "base" rent payable by tenants under the Commercial Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Seller by any tenant but uncollected as of the Effective Time Closing shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing to be remitted to MLP Seller if, as and when collected. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 Purchaser shall include the amount of such rent and other sums in the first bills thereafter submitted to the tenants in question after the Closing, and shall continue to do so for twelve (12) months thereafter. (Purchaser hereby covenanting and agreeing not to modify the Leases after Closing to change the date and/or method for payment of amounts attributable to the period prior to Closing until after the occurrence of the reprorations described in Sections 4(C)(iv) below.) Purchaser shall promptly remit to MLP Seller any such rent or other sums paid by scheduled tenants, notwithstanding that but only if a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. water, electric, telephone and all other utility charges with respect to the Properties, and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time);
E. amounts due and prepayments under the Other Contracts or Equipment Leases;
F. assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be final.
Appears in 1 contract
Samples: Real Estate Sale Agreement (First Capital Income Properties LTD Series Viii)
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, prorations and other adjustments shall be prepared by MRY3 Purchaser in conformity with the provisions of this Agreement and submitted to the applicable Seller for each Individual Property for review not less than three (3) business days prior to the Effective TimeClosing Date. For purposes of prorations, each Assignment Purchaser shall be deemed to have occurred as the owner of 12:01 a.m. the applicable Individual Property on the date of Closing Date. In addition to prorations and adjustments that may otherwise be provided for in this Agreement, the Effective Time. The following items are to shall be prorated or adjusted, adjusted (as the case may require, requires) with respect to the Individual Property as of the Effective Time:
A. Closing Date: (a) real estate and personal property taxes and assessments;
B. assessments (if the rent payable by tenants under the Commercial Leases; provided that rent and all other sums which are due and payable to MLP by any tenant but uncollected as amount of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums taxes or assessments for the period prior to year in question is not known, then the Effective Time to same shall be remitted to MLP if, as and when collected. On prorated on the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as basis of the most recent date availableascertainable xxxx(s); (b) rents paid under the Individual Property Leases for the calendar month during which the Closing occurs, and the amount of all such any rents paid to the applicable Property Owner which are applicable to the period subsequent to the calendar month during which the Closing occurs. However, no prorations shall be made for delinquent lot rental amounts or other charges existing as of the Closing. Rents and other charges which at the Closing are unpaid or past due (hereinafter "Delinquent Rents") shall not be prorated. The applicable Property Owner shall not take any action against tenants to collect Delinquent Rents. For ninety (90) days after the Closing, Purchaser shall use reasonable efforts to collect Delinquent Rents, but uncollected rent such undertaking shall not be deemed to obligate Purchaser to expend any funds or institute any legal proceedings of any nature. Rents and other sums owed 14 <PAGE> amounts received by tenantsPurchaser or the applicable Property Owner after the Closing from a tenant owing Delinquent Rents shall be applied, on a tenant by tenant basis: (i) first, to all of Purchaser's costs of collection incurred with respect to Delinquent Rents (including reasonable attorneys' fees and costs); (ii) second, to rents due for the month in which such payment is received by Purchaser; (iii) third, to rents attributable to any period after the Closing which are past due on the date of receipt; and (iv) fourth, to Delinquent Rents. MRY3 For the purpose of the foregoing application of rents, rents received from tenants that are not delinquent shall not be applied to or commingled with Delinquent Rents. The applicable Property Owner shall promptly remit to MLP Purchaser any sums received by such rent or other sums paid party from tenants after the Closing for application (if applicable) to Delinquent Rents by scheduled tenants, notwithstanding that a deficiency Purchaser in the then current rent is thereby createdmanner provided above. MRY3 Purchaser shall xxxx tenants who owe rent for periods prior promptly remit to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For applicable Property Owner any amounts due MLP not collected within thirty such party on account of Delinquent Rents after application of rents in the manner provided above; (30c) days after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. the full amount of the security and other deposits paid under the Commercial Individual Property Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable lawd) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. water, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, fuel on hand (at cost plus sales tax) and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will shall be handled by meter readings on the Effective TimeClosing Date);
E. ; (e) amounts due and prepayments under the Other Individual Property Service Contracts or Equipment Leases;
F. being assumed by Purchaser; (f) assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due ; and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date availableg) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other partyitems. Any proration which must be estimated on at the Effective Time Closing (including real estate taxes and personal property taxes) shall be re-prorated reprorated and finally adjusted as soon as practicable within ninety (90) days after the Effective Time; otherwiseClosing Date (or, with respect to the real estate and personal property taxes, within thirty (30) days after receipt of the applicable tax xxxx), otherwise all prorations shall be final.
(ii) Notwithstanding anything to the contrary contained in this Agreement, each Seller shall be responsible for, or shall cause the applicable Property Owner or Diversified to be responsible for, and, at or prior to the Closing, shall pay all amounts due through the Closing for employees' salaries, vacation pay, withholding and payroll taxes, and other compensation and benefits, and any management fee affecting the Individual Property. If and to the extent such Seller has not paid or caused to be paid all such amounts as of the Closing, Purchaser shall receive a credit against the Cash Balance payable at the Closing in an amount equal to the amount not so paid. If and as requested by Purchaser, each Seller shall terminate or cause to be terminated as of the Closing the 15 <PAGE> employment of all employees who work at the Individual Property. The Sellers shall indemnify and hold Purchaser harmless from and against any and all obligations and other matters relative to any terminated employees and, with respect to any employees not terminated, applicable to the period prior to the Closing, including attorneys' fees incurred by Purchaser in connection therewith. (iii) Purchaser shall receive a credit against the Purchase Price for each dollar of "New Cactus Gardens Value" not generated by the Fee Seller of the Cactus Gardens Property from the date hereof through the Closing Date for such property. "New Cactus Gardens Value" shall mean (a) the number of new rental agreements executed at the Cactus Gardens Property from and after the date hereof for a term encompassing the entire season at the Cactus Gardens Property (which number of new agreements shall not exceed five (5) and shall be reduced on an agreement-for-agreement basis to the extent any of the 277 rental agreements which are in full force and effect for the entire season at the Cactus Gardens Property as of the date hereof is no longer in full force and effect or a viable tenancy as a result of the tenant not arriving at the property to honor such rental agreement as of the Closing Date), (b) multiplied by the net rental income provided for in such rental agreement, (c) divided by 0.0762; provided, however, in no event shall New Cactus Gardens Value exceed $103,346. For example, if the amount of New Cactus Gardens Value equals $100,000, Purchaser would receive a credit equal to $3,346.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to Seller shall prepare the Effective Time) Closing Statement of the prorations and a proposed statement of prorations, and other adjustments shall be prepared required by MRY3 in conformity with the provisions of this Agreement not less than three and submit it to Purchaser at least two (32) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective TimeClosing Date. The following items are to be prorated prorated, adjusted or adjusted, credited (as the case may require, appropriate) as of the Effective Time:close of business on the Closing Date, it being understood that for purposes of prorations and adjustments, Seller shall be deemed to be the owner of the Property on the Closing Date and Purchaser shall be deemed to be the owner of the Property as of the date following the Closing Date: 4.
A. 4.1 real estate and personal property taxes and assessments;assessments attributable to the year in which the Closing occurs (on the basis of the most recent available tax xxxx if the current xxxx is not then available), it being understood by the parties hereto that all special assessments assessed against the Property and due and payable prior to the Closing Date shall be the sole responsibility of Seller; 4.
B. 4.2 the rent and other sums (other than as set forth in Section 4.4.3 below) payable by tenants under the Commercial Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Seller by any tenant but uncollected as of the Effective Time Closing (collectively, the “Delinquent Amounts”) shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time such Delinquent Amounts to be remitted to MLP Seller if, as and when collected. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent Delinquent Amounts. In the event any Delinquent Amount is inadvertently omitted from such schedule, Seller shall not be deemed to have waived its rights to such Delinquent Amount. Purchaser shall include any and other sums owed by tenantsall Delinquent Amounts in the first bills submitted to the tenants in question after the Closing, and shall continue to do so for six (6) months thereafter. MRY3 Purchaser shall promptly remit to MLP Seller any such rent or other sums paid by scheduled tenants, notwithstanding Delinquent Amounts provided that a deficiency in the then current total rent due Purchaser is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to not created thereby; 4.
4.3 the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. the full amount of unapplied refundable security and pet deposits paid held by Seller under the Commercial Leases, to the extent unapplied, Leases together with any interest thereon if required by applicable law or otherwiserequired by the Leases; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;4.
D. 4.4 water, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, and fuel on hand (at cost plus sales tax); provided, however, that any assignable deposits with utility companies specifically allocable to shall remain 22043518.5 -7- the Properties (said assignable deposits being property of the Seller and shall not be prorated or credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Timeday immediately preceding the Closing Date);
E. amounts due and prepayments under the Other Contracts or Equipment Leases;
F. assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be final.
Appears in 1 contract
Samples: Real Estate Sale Agreement
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, adjusted (as the case may require, appropriate) as of 11:59 p.m. on the Effective Timeday before the Closing Date and reprorated (if necessary) pursuant to Section 4.C.(ii) below, it being understood that for purposes of prorations and adjustments, Seller shall be deemed the owner of the Property on the day before the Closing Date, and Purchaser shall be deemed the owner of the Property on the Closing Date:
A. (a) real estate and personal property taxes and assessmentsbased on the fiscal year used by the taxing authority (on the basis of the most recent ascertainable tax or assessment xxxx if the current xxxx is not then available);
B. (b) the "minimum" or "base" rent and estimated payments of "Percentage Rent" (hereafter defined) payable by tenants under the Commercial Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Seller as of Closing by any tenant but uncollected as of the Effective Time Closing shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing to be remitted to MLP Seller if, as and when collected, but only if there is no deficiency in the then current rent. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 Purchaser shall promptly remit include the amount of such rent and other sums in the bills thereafter submitted to MLP the tenants in question after the Closing. Purchaser shall not be obligated to commence a law suit to collect any such rent sums or other sums paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate for the failure to pay any Commercial Lease;
C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP such sums but Seller shall have retain the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. water, electric, telephone and all other utility charges with respect to the Properties, and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time);
E. amounts due and prepayments under the Other Contracts or Equipment Leases;
F. assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable do so after the Effective Time; otherwise, all prorations shall be final.Closing provided Seller may not seek to terminate any Lease or evict any tenant;
Appears in 1 contract
Samples: Purchase and Sale Agreement (First Capital Income Properties LTD Series Viii)
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, adjusted (as the case may require, appropriate) as of 11:59 p.m. Central Time on the Effective Timeday before the Closing Date and reprorated (if necessary) pursuant to Section 4.C(ii) hereof, it being understood that for purposes of prorations and adjustments, Seller shall be deemed the owner of the Property on the day before the Closing Date, and Purchaser shall be deemed the owner of the Property on the Closing Date, so that all income and expense attributable to the Property and allocable (a) to the period prior to the Closing Date shall be borne or credited to Seller and (b) to the period on or after the Closing Date shall be borne or credited to Purchaser:
A. (a) real estate (including, without limitation, property taxes and school taxes) and personal property taxes and assessments;
B. current installments of assessments affecting the rent Property which are payable by tenants under Seller in the Commercial Leasescalendar year in which Closing occurs (on the basis of the most recent ascertainable assessment if the current xxxx is not then available) shall be prorated as of the Closing Date on an accrual basis based upon the period of assessment, regardless of the year for which such taxes or assessments are assessed. Attached hereto as EXHIBIT T is a schedule that shows the real estate taxes payable in calendar 2004, the basis of assessment and an illustration of the proration of such real estate taxes.
(b) the "minimum" or "base" rent and estimated payments of "Percentage Rent" (hereinafter defined) payable by Tenants; provided provided, however, that rent and all other sums which are due and payable to MLP Seller as of the Closing Date by any tenant Tenant but uncollected as of the Effective Time Closing Date shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing Date to be remitted to MLP Seller if, as and when collectedcollected (including any penalties and interest permitted by the applicable Lease to be charged to the Tenant for late payment). On All payments from Tenants on account of rent received after the Effective TimeClosing Date whether by Seller or Purchaser shall first be applied to the current monthly rent or other sums currently due under the applicable Lease, MLP then to delinquent rentals and other delinquent sums due under the applicable Lease, if any, due Purchaser and then to delinquent rentals and other delinquent sums due Seller. At Closing, Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenantsTenants. MRY3 Purchaser shall promptly remit include the amount of such rent and other sums in the bills thereafter submitted to MLP the Tenants in question after the Closing. Purchaser shall use commercially reasonable efforts to collect such past due sums, but Purchaser shall not be obligated to commence a lawsuit to collect any such rent sums or other sums paid by scheduled tenants, notwithstanding that a deficiency in to evict any Tenant for the then current rent is thereby createdfailure to pay any such sums. MRY3 Seller shall xxxx tenants who owe rent for periods prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP shall have retain the right to xxx commence a lawsuit to collect sameany such sums after the Closing, but in no event provided Seller may MLP not seek to terminate any Lease or evict any tenant or terminate any Commercial Lease;
C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. water, electric, telephone and all other utility charges with respect to the Properties, and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time);
E. amounts due and prepayments under the Other Contracts or Equipment Leases;
F. assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be finalTenant.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Feldman Mall Properties, Inc.)
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, and other adjustments shall be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective Time. The following items are to be prorated or adjusted, adjusted (as the case may require, appropriate) as of 11:59 p.m. on the Effective Timeday before the Closing Date and reprorated (if necessary) pursuant to Section 4.C.(ii) below, it being understood that for purposes of prorations and adjustments, Seller shall be deemed the owner of the Property on the day before the Closing Date, and Purchaser shall be deemed the owner of the Property on the Closing Date:
A. (a) real estate and personal property taxes shall be prorated (on a per diem basis) on a cash basis based on the calendar year of Closing (on the basis of the most recent ascertainable tax or assessment xxxx if the current xxxx is not then available).
(b) the “minimum” or “base” rent and assessments;
B. the rent payable by estimated payments of “Percentage Rent” (hereafter defined) collected from tenants under the Commercial Leases; provided provided, however, that rent and all other sums which are due and payable to MLP Seller as of Closing by any tenant but uncollected as of the Effective Time Closing shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time Closing to be remitted to MLP Seller if, as and when collected, but only if there is no deficiency in the then current rent. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 Purchaser shall promptly remit include the amount of such rent and other sums in the bills thereafter submitted to MLP the tenants in question after the Closing. Purchaser shall not be obligated to commence a lawsuit to collect any such sums or to evict any tenant for the failure to pay any such sums but Seller shall retain the right to do so after the Closing provided Seller may not seek to terminate any Lease or evict any tenant.
(c) to the extent not set forth on the schedule of uncollected rent described in Section 4.C.(i)(b) above, “percentage” or other sums “overage” rent (“Percentage Rent”) that is (1) attributable to any Percentage Rent lease year in which the Closing Date falls and (2) not yet determinable as of the Closing Date (collectively, “Current Year Percentage Rent”), shall be prorated as follows: promptly upon receipt by Purchaser, Purchaser shall furnish to Seller copies of all sales reports from tenants relative to Current Year Percentage Rent, including, without limitation, all sales reports with respect to any tenants whose Percentage Rent lease years have expired as of the Closing but whose sales reports were not delivered to Seller as of the Closing Date and sales reports of any tenants whose Percentage Rent lease years expire after the Closing, and the amount of any Current Year Percentage Rent shall be payable in accordance with such tenant’s Lease as existing as of the Closing Date, and Purchaser shall (to the extent not paid to Seller by scheduled tenants, notwithstanding that way of estimated payments from the tenant prior to Closing) pay to Seller a deficiency portion of such rent based upon the apportionment being made as of the Closing Date (in proportion to the relative number of days in the then current subject Percentage Rent Lease year occurring prior and subsequent to the Closing Date), promptly after the date when such rent is thereby createdreceived from the tenant;
(d) Seller, as landlord under the Leases, is currently collecting from tenants additional rent to cover taxes, insurance, utilities, maintenance and other operating costs and expenses incurred by Seller (such expenses, collectively “Expenses” and such collections, collectively “Collections”). MRY3 Non-delinquent Collections for the month in which Closing occurs shall xxxx tenants who owe rent be prorated in the same manner as other rents. Within sixty (60) days after the Closing occurs, Seller shall calculate the Expenses incurred and Collections received for periods prior the year of Closing by Seller and shall prepare and present to Purchaser for its review and approval, which approval shall not be unreasonably withheld or delayed, a calculation of the Effective Time on a monthly basis for six consecutive months following the Effective TimeCollections received and Expenses incurred by Seller. For amounts Seller shall make any necessary adjusting payment to Purchaser, due MLP not collected to any over-collection by Seller, within forty five (45) days after presentment to, and approval by, Purchaser of Seller’s calculation and Purchaser shall make any necessary adjusting payment to Seller, due to any under-collection by Seller, within thirty (30) days after presentment to, and approval by Purchaser of Seller’s calculation. Either party may inspect the Effective Time, MLP shall have other’s books and records related to the right Property to xxx confirm the calculation.
(e) Seller is currently collecting from JT an annual payment to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. the full amount cover JT’s share of security deposits paid common area charges under the Commercial Leases, to Walgreens REA (the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to “JT CAM”). Non-delinquent JT CAM for the extent permitted by applicable law) MLP calendar year in which Closing occurs shall have be prorated based upon the right to apply security deposits, if any, against delinquent rents number of days Seller and other obligations of Purchaser each own the tenants;
D. water, electric, telephone and all other utility charges with respect to Property during the Properties, and any assignable deposits with utility companies specifically allocable to calendar year in which the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time);
E. amounts due and prepayments under the Other Contracts or Equipment Leases;
F. assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable Closing occurs. Any JT CAM which are is due and payable to MLP under the Clay Contracts Seller as of Closing but which is uncollected as of the Effective Time Closing shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and Purchaser shall cause any such amounts receivable for delinquent JT CAM and other sums attributable to the period prior to the Effective Time Closing to be promptly remitted to MLP Seller if, as and when collected. On At Closing, Seller shall retain the Effective Time, MLP shall deliver right to MRY3 commence a schedule (prepared by MLP as lawsuit for the failure of JT to pay any of the most recent date availablesums described in this clause (e) of all such past due but uncollected receivables. MRY3 shall promptly remit after Closing, provided Seller may not seek to MLP any such receivables paid under terminate the Clay ContractsWalgreens REA.
(f) If Closing occurs, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP Purchaser shall be responsible for paying the payment of all premiums, fees Tenant Inducement Costs (as hereinafter defined) and other costs associated with the maintenance or termination leasing commissions which become due and payable after Closing (A) as a result of any insurance policies maintained by MLP prior to the Effective Time renewal option or expansion option with respect to existing Leases, which option has not been exercised as of the Propertiesdate hereof, (B) under any new Leases entered into after the date hereof to the extent such new Lease is approved or deemed approved by Purchaser in accordance with Section 5.A hereof, or (C) which are set forth in a Lease, have not accrued prior to Closing and are due and payable after Closing. Seller shall be responsible for the payment of all Tenant Inducement Costs and leasing commissions which are not described in clause (A), (B) or (C) of the preceding sentence. If, as of the date of Closing, Seller shall have paid any Tenant Inducement Costs or leasing commissions for which Purchaser is responsible pursuant to the foregoing provisions, Purchaser shall reimburse Seller therefor at Closing. If, as of the Closing, Seller shall not have paid any Tenant Inducement Costs or leasing commissions for which Seller is responsible, Purchaser shall receive a credit at Closing in such amounts. For purposes hereof, the term “Tenant Inducement Costs” shall mean any out-of-pocket payments required under a Lease to be paid by the landlord thereunder to or for the benefit of the tenant thereunder which is in the nature of a tenant inducement, including, specifically, without limitation, tenant improvement costs, signage costs, lease buyout costs, and shall be entitled to any refunds moving, design, refurbishment and club membership allowances (but excluding legal fees incurred in connection with the termination preparation and negotiation of said policiesthe lease). The net amount term “Tenant Inducement Costs” shall not include loss of income resulting from any prorations free rental period, it being agreed that Seller shall be paid in cash on bear the Effective Time to MLP or MRY3, as loss resulting from any free rent period until the case may be, by the other party. Any proration which must be estimated on the Effective Time date of Closing and Purchaser shall be re-prorated bear such loss from and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be finaldate of Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (First Capital Income Properties LTD Series Xi)
Closing Prorations and Adjustments. (ai) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement of prorations, prorations and other adjustments shall be prepared by MRY3 Purchaser in conformity with the provisions of this Agreement and submitted to Sellers for review not less than three ten (310) business days prior to the Effective TimeClosing Date (the "Closing Statement"). For purposes of prorations, each Assignment Purchaser shall be deemed to have occurred as the owner of 12:01 a.m. the Properties and the Z and R Bond Partnership Interests on the date of Closing Date. In addition to prorations and adjustments that may otherwise be provided for in this Agreement, the Effective Time. The following items are to shall be prorated or adjusted, adjusted (as the case may require, requires) as of the Effective TimeClosing Date:
A. (a) real estate and personal property taxes and assessments;
B. assessments (if the rent payable by tenants under the Commercial Leases; provided that rent and all other sums which are due and payable to MLP by any tenant but uncollected as amount of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums taxes or assessments for the period prior to year in question is not known, then the Effective Time to same shall be remitted to MLP if, as and when collected. On initially prorated on the Effective Time, MLP shall deliver to MRY3 a schedule basis of one hundred ten percent (prepared by MLP as 110%) of the most recent date availableascertainable bill(x), and shall be reprorated upon issuance of the actual bill therefor to effectuate the actual proration);
(b) rents paid under the Leases for the calendar month during which the Closing occurs, and the amount of all such past due but uncollected rent and other sums owed by tenants. MRY3 shall promptly remit any rents paid to MLP any such rent or other sums paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior each Seller which are applicable to the Effective Time on a monthly basis for six consecutive months following period subsequent to the Effective Time. For amounts due MLP not collected within thirty (30) days after calendar month during which the Effective Time, MLP shall have the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial LeaseClosing occurs;
C. (c) the full amount of the security and other deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. (d) water, electric, telephone and all other utility charges with respect to the Propertiesand fuel charges, fuel on hand (at cost plus sales tax) and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will shall be handled by meter readings on the Effective TimeClosing Date);
E. (e) amounts due and prepayments under the Other Service Contracts or Equipment Leasesbeing assumed by Purchaser;
F. (f) assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable (g) premiums for insurance carried by any Seller, which are due Purchaser may, at its election and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjustedif assignable, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby createdassume;
H. (h) other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in questionitems; and
I. MLP (i) all interest, principal and other required payments relating to the Assumed Underlying Notes and/or the Assumed Underlying Mortgages, together with any escrows on deposit with any lender, which shall be responsible held for paying all premiums, fees and other costs associated with the maintenance or termination benefit of any insurance policies maintained by MLP prior to Purchaser after the Effective Time Closing. Except with respect to the Propertiesreal estate and personal property taxes which are to be reprorated as aforesaid, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on at the Effective Time Closing shall be re-prorated reprorated and finally adjusted as soon as practicable within 120 days after the Effective Time; otherwiseClosing Date, otherwise all prorations shall be final.
(ii) Notwithstanding anything to the contrary contained in this Agreement, each Seller shall be responsible for and, at or prior to the Closing, shall pay all amounts due through the Closing for employees' salaries, vacation pay, withholding and payroll taxes, and other compensation and benefits, and any management fee affecting the Properties. If and as requested by Purchaser, each Seller shall terminate as of the Closing the employment of all employees who work at the Properties. Each Seller shall indemnify and hold Purchaser harmless for a period of 120 days post-Closing from and against any and all obligations and other matters relative to any terminated employees and, with respect to any employees not terminated, applicable to the period prior to the Closing, including attorneys' fees incurred by Purchaser in connection therewith. Purchaser's sole recourse in the event of a claim for indemnification under this Section 5(C)(ii) shall be to the amount deposited in escrow established pursuant to Section 9(C).
Appears in 1 contract
Samples: Manufactured Home Community Portfolio Purchase Agreement (Manufactured Home Communities Inc)
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 five (5) days prior to the Effective TimeDistribution Date) and a proposed statement of prorations, prorations and other adjustments shall be prepared by MRY3 Investor LLC in conformity with the provisions of this Agreement not less than three five (35) business days prior to the Effective TimeDistribution Date. For purposes of prorations, each Assignment the Distribution shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective TimeDistribution Date. The following items are to be prorated or adjusted, as the case may require, as of the Effective TimeDistribution Date, and shall constitute adjustments to the Cash Redemption Payment:
A. (i) real estate and personal property taxes and assessmentsassessments (prorated on the basis of 100% of the most recent ascertainable xxxx);
B. (ii) the base rent payable by tenants under the Commercial LeasesTenant Leases for the month in which the Distribution Date occurs; provided provided, however, that rent and all other sums which are due and payable to MLP the Distributed LLC's by any tenant but uncollected as of the Effective Time Distribution Date shall not be adjusted, but MRY3 Investor LLC shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums for the period prior to the Effective Time Distribution Date to be remitted to MLP the Partnership if, as and when collected. On the Effective TimeDistribution Date, MLP the Partnership shall deliver to MRY3 Investor LLC a schedule (prepared by MLP the Partnership as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 Investor LLC shall promptly remit to MLP the Partnership any such rent or other sums paid by scheduled tenants, notwithstanding that but only if a deficiency in the then current rent is not thereby created. MRY3 Investor LLC shall xxxx tenants who owe rent for periods prior to the Effective Time Distribution Date on a monthly basis for six consecutive months following the Effective TimeDistribution Date. For amounts due MLP not collected within thirty In the case of percentage rents, it is the intent of the parties that the Partnership (30) days after directly or through its ownership of the Distributed LLC's prior to the Effective Time) shall be entitled to any percentage rent payments, MLP if any, to the extent accrued through the Distribution Date. In the case of pass-throughs for taxes and expenses, it is the intent of the parties that the Partnership (directly or through its ownership of the Distributed LLC's prior to the Effective Time) shall be entitled to an amount equal to the total payments due from tenants for the 2000 calendar year or other collection period under the applicable Tenant Lease in which the Distribution Date occurs, multiplied by a fraction, the numerator of which is the actual taxes or expenses paid by the Partnership (directly or through its ownership of the Distributed LLC's prior to the Effective Time) or with respect to which Investor LLC has received a credit in connection with the Distribution, and the denominator of which is the total taxes and expenses for said calendar year or other collection period. Investor LLC shall use diligent efforts to collect all percentage rents and pass-throughs with respect to which the Partnership is entitled to share pursuant to this clause (ii), and shall not waive or modify in any material respect the obligation of any tenant under a Tenant Lease, to the detriment of the Partnership, without the Partnership's prior written consent. If any amount owed by a tenant under a Tenant Lease remains delinquent for more than ninety (90) days past the date on which said amount was due, and if the Partnership has the right to share in all or any portion of said amount pursuant to this clause (ii), then the Partnership shall have the right, at its sole cost, to enforce the obligation of said tenant under said Tenant Lease (and this clause (ii), without more, constitutes an assignment of said right to xxx to collect sameof enforcement), but in no event may MLP the Partnership seek to evict any tenant or terminate any Commercial Tenant Lease;
C. . From and after the full amount Distribution Date, Investor LLC shall certify monthly, as to all income (broken into categories of security deposits paid income) received under all Tenant Leases until all of Investor LLC's obligations under this Section 2.6 have been satisfied in full, but in no event to exceed a period equal to six (6) months from the Commercial LeasesDistribution Date. Upon prior reasonable written notice, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP Partnership shall have the right to apply security depositsinspect and review Investor LLC's books and records, and shall have the right to engage an accounting firm to audit said books and records, which audit shall be at Investor LLC's expense if any, against delinquent rents and other obligations it discloses that any category of income with respect to which the tenants;Partnership is entitled to share pursuant hereto was more than three percent (3%) greater than the amounts certified by Investor LLC for the period of time in question.
D. (iii) water, electric, telephone and all other utility charges with respect to the Propertiescharges, and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being credited to MLPthe Partnership) (to the extent possible, utility prorations will be handled by meter readings on the Effective TimeDistribution Date);
E. (iv) amounts due and prepayments prepayments, if any, under all contracts, agreements, leases and licenses (including equipment leases, but excluding Tenant Leases and the Other Contracts or Equipment LeasesProperty-level Debt Instruments);
F. (v) assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past(vi) interest on any assumed Property-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby createdlevel Debt;
H. (vii) other expenses of operation and similar items (including workers' compensation payments, if any) customarily prorated in connection with real estate closings for similar properties in the locality in questionquestion (provided that all Capital Expenditures made after June 1, 2000 shall be treated as provided in the definition of Agreed Retail Property Value);
(viii) The Partnership shall receive a credit for all cash in any bank accounts of the Distributed LLC's as of the Distribution Date; and
I. MLP (ix) The Partnership shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP the Partnership or the Distributed LLC's prior to the Effective Time Distribution Date with respect to the Retail Properties, and shall be entitled to any refunds of unearned premiums with respect to prepaid insurance amounts in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration (other than general real estate and personal property taxes) which must be estimated on the Effective Time Distribution Date shall be re-prorated and finally adjusted as soon as practicable after the Effective TimeDistribution Date; otherwise, all prorations shall be final. In the case of pass-throughs for general real estate taxes and expenses, the parties shall project in good faith what the amount of the final proration will be at the end of the lease fiscal year in question (or other collection period under the applicable Tenant Lease) and shall use such projection as the basis for the proration adjustment on the Distribution Date, subject to readjustment within thirty (30) days after the close of the fiscal year for each Tenant Lease (or other collection period under the applicable Tenant Lease).
Appears in 1 contract
Samples: Redemption and Distribution Agreement (Grove Property Trust)
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement Statements of prorations, prorations and other adjustments shall be prepared by MRY3 Seller in conformity with the provisions of this Agreement and submitted to Purchaser for review and approval not less than three (3) business days prior to the Effective TimeClosing Date. For purposes of prorations, each Assignment Purchaser shall be deemed to have occurred as the owner of 12:01 a.m. the Property on the date of Closing Date. In addition to prorations and other adjustments that may otherwise be provided for in this Agreement, the Effective Time. The following items are to be prorated or adjusted, as the case may require, as of the Effective TimeClosing Date:
A. (i) If not paid by the Tenant pursuant to the Lease, real estate and personal property taxes and assessments;
B. assessments (initially prorated on the rent payable by tenants under the Commercial Leases; provided that rent and all other sums which are due and payable to MLP by any tenant but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as basis of the most recent date available) ascertainable bxxx, but subject to reproration upon issuance of the actual bxxx therefor to effectuate the actual proration), provided that Seller shall pay prior to Closing or give Purchaser a credit at Closing for, the amount of all installments of special assessments levied prior to Closing and which are payable after Closing;
(ii) Seller and Purchaser shall prorate the rent, charges and other amounts payable by Tenant to Seller for the month of Closing, including expense “pass-throughs” which are due for the month of Closing. With respect to rent, charges and other amounts payable by Tenant to Seller (including expense “pass-throughs”) for months prior to the month of Closing (“Delinquent Amounts”), Purchaser shall make a commercially reasonable good faith effort to collect such past due Delinquent Amounts for a period of three months following Closing), but uncollected Purchaser shall not be required to take legal action with respect to Delinquent Amounts. At Closing, Seller shall deliver to Purchaser a schedule of all Delinquent Amounts. Notwithstanding the foregoing or any direction from Tenant to the contrary, rental and other payments received by Purchaser from Tenant shall first be applied toward Purchaser’s actual out-of-pocket costs of collection, then toward the payment of rent and other sums charges owed by tenants. MRY3 shall promptly remit to MLP any such rent or other sums paid by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent Purchaser for periods prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective TimeClosing, MLP and any excess monies received shall be applied toward the payment of Delinquent Amounts. Purchaser may not waive any Delinquent Amounts or modify a Lease so as to reduce amounts or charges owed under Lease for any period in which Seller is entitled to receive a share of charges or amounts, without first obtaining the written consent of Seller and Seller shall have the right to xxx collect same after Closing. Purchaser shall make year-end reconciliations of reimbursements owed by Tenant under the Lease to collect the landlord thereunder of the Tenant’s share of property taxes and assessments, insurance premiums, common area maintenance and other expenses related to the operation of the Property for the calendar year 2015 (collectively, “Reimbursable Tenant Expenses”). In order to enable Purchaser to make any year-end reconciliations of Reimbursable Tenant Expenses for calendar year 2015, Seller shall deliver to Purchaser, in writing, within sixty (60) days after the Closing Date, the Reimbursable Tenant Expenses actually paid or incurred by Seller for the portion of the calendar year 2015 during which Seller owned the Property (“Seller’s Actual Reimbursable Tenant Expenses”) and the Tenant reimbursements for such Reimbursable Tenant Expenses actually paid to Seller by Tenant for the portion of the calendar year 2015 during which Seller owned the Property (“Seller’s Actual Tenant Reimbursements”). On or before March 31, 2016, Purchaser shall deliver to Seller a reconciliation statement (the “Reconciliation Statement”) setting forth (i) the Actual Reimbursable Tenant Expenses paid or incurred during calendar year 2015, (ii) the Actual Tenant Reimbursements actually paid in calendar year 2015, and (iii) a calculation of the difference between the two (i.e., establishing that the Actual Reimbursable Tenant Expenses were either more or less than the Actual Tenant Reimbursements for the calendar year 2015), with Purchaser utilizing the information delivered to Purchaser by Seller related to the period of the calendar year 2015 which is prior to the Closing Date. Any amount due Seller pursuant to the foregoing calculation (in the event Seller’s Actual Tenant Reimbursements for the period January 1 to the date prior to Closing are less than Seller’s Actual Reimbursable Tenant Expenses for the same period) or Purchaser (in the event the Actual Tenant Reimbursements are more than the Actual Reimbursable Tenant Expenses), as the case may be, shall be paid by Purchaser to Seller within fourteen (14) business days after Purchaser has collected such sums from any tenant who owes same, but or if Seller owes Purchaser for any such sum, Seller shall pay to Purchaser within fourteen (14) business days after delivery of the Reconciliation Statement to Seller, all such sums owed by Seller to Purchaser. If Purchaser is paid any such amount by Seller, Purchaser thereafter shall be obligated to promptly remit the applicable portion to the Tenant entitled thereto. If Purchaser has transferred its interest in no event may MLP seek the Property to evict any tenant a successor-in-interest or terminate any Commercial Leaseassignee prior to such date, then, on or before the transfer of its interest in the Property, Purchaser shall (i) in writing expressly obligate such successor-in-interest or assignee to be bound by the provisions of this Section, and (ii) deliver written notice of such transfer to Seller, and thereafter Seller shall make the deliveries specified above to Purchaser’s successor-in-interest or assignee. Seller’s Reconciliation Statement shall be final and binding for purposes of this Contract;
C. (iii) the full amount of the security deposits deposit, paid under the Commercial LeasesLease, to the extent unappliedif any, and not theretofore applied, together with interest thereon if to the extent any interest is required by law or otherwise; provided that (otherwise to be paid to the extent permitted Tenant, shall be delivered by applicable law) MLP Seller to Purchaser on the date of Closing. Prior to the Closing, Seller shall have not apply the right to apply security deposits, if any, against delinquent rents and other obligations of the tenantsdeposit;
D. (iv) water, electric, telephone and all other utility and fuel charges with respect not paid by the Tenant under the Lease shall be prorated ratably on the basis of the last ascertainable bills (and reprorated upon receipt of the actual bills or invoices) unless final meter readings and final invoices can be obtained. To the extent practicable, if Tenant does not pay the water, electric, telephone and other utility charges pursuant to the PropertiesLease, and any assignable deposits with utility companies specifically allocable Seller shall cause meters for utilities to be read not more than one (1) business day prior to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time)date of Closing;
E. (v) amounts due and prepayments paid or owing under the Other Contracts or Equipment Leasesany Assumed Service Contracts, if any;
F. (vi) assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date availablevii) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; anditems;
I. MLP (viii) Seller shall be responsible for paying all premiums, fees leasing commissions and other leasing costs associated with the maintenance or termination of any insurance policies maintained by MLP due and payable prior to the Effective Time Date with respect to the PropertiesLease. Purchaser shall be responsible for all leasing commissions and other leasing costs attributable to the Lease or the renewal, extension or expansion of the Lease due and payable after the Effective Date. If Seller has, prior to the Closing, paid any leasing commissions or other leasing costs which are Purchaser’s responsibility hereunder, Seller will receive a credit for same from Purchaser at the Closing. Purchaser shall have no obligation to pay for any leasing commissions in connection with the initial terms of the Lease. This subsection shall survive Closing;
(ix) The cost of all Tenant improvement work owed or to be owed in connection with the current term of the Lease existing as of the date hereof (collectively “Seller TI Work Payable”) shall be the responsibility of Seller, and shall be entitled paid in full by Seller at or prior to any refunds in connection with Closing. To the termination extent not completed prior to Closing, Purchaser shall agree to complete such Seller TI Work Payable, and to pay the cost of said policies. The net such Tenant improvement work, and the amount of any prorations the Purchase Price due Seller hereunder shall be reduced by the cost of such Seller TI Work Payable. In the event the costs of any portion of the Seller TI Work Payable is not determinable as of the Closing Date, the amount of the Purchase Price otherwise to be paid in cash on hereunder shall be reduced by Purchaser and Seller making a reasonable estimate of the Effective Time to MLP costs of such Seller TI Work Payable (the “Holdback”). To the extent the final costs paid by Purchaser for Seller TI Work Payable is more or MRY3less than the Holdback, Purchaser and Seller agree that the Purchase Price will be increased or decreased, as the case may be, and Seller shall pay Purchaser the amount by which the other partysum of the Holdback is less than the actual cost of the Seller TI Work Payable and Purchaser will pay Seller the amount by which the Holdback is more than the actual cost of the TI Work Payable; and
(x) All obligations to pay Tenant improvement work owed or to be owed in connection with extension or renewal terms of the Lease shall be paid by Purchaser when due after the Closing Date without an adjustment to the Purchase Price. Any Notwithstanding the foregoing, to the extent any portion of the term of the Lease for which Purchaser shall pay the Tenant improvement cost in connection therewith occurs prior to the Closing Date, the amount of the Purchase Price will be reduced by a pro rata share of such cost based upon the percentage of such term (exclusive of any renewal options) which occurs prior to the Closing Date. Except with respect to general real estate and personal property taxes (which shall be reprorated upon the issuance of the actual bills, if necessary), and expense “pass throughs” (which shall be trued up within the sixty (60) day period set forth above) any proration which must be estimated on the Effective Time at Closing shall be re-prorated reprorated and finally adjusted as soon as practicable after the Effective Time; otherwiseClosing Date with any refunds payable to Seller or Purchaser to be made as soon as practicable after such amounts are determined, otherwise all prorations shall be final. Amounts on deposit with utility companies shall be disclosed to Purchaser within ten (10) days after the Effective Date and shall not be prorated; provided, however, that promptly following the Closing, Purchaser shall substitute its own deposit for any amounts on deposit with utility companies and shall refund to Seller any portion of Seller’s deposit which is refunded by the utility company. The rights, covenants and obligations contained in this Paragraph 5(c) shall survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (United Realty Trust Inc)
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to Sellers shall prepare the Effective Time) Closing Statement of the prorations and a proposed statement of prorations, and other adjustments shall be prepared required by MRY3 in conformity with the provisions of this Agreement not less than and submit it to Purchaser at least three (3) business days Business Days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective TimeClosing Date. The following items are to be prorated prorated, adjusted or adjustedcredited (as appropriate), as it being understood that for purposes of prorations and adjustments, the case may require, as applicable Seller shall be deemed to be the owner of the Effective Timeapplicable portion of the Property prior to but not including the Closing Date and the applicable Purchaser shall be deemed to be the owner of the applicable portion of the Property on and following the Closing Date:
A. 4.4.1 real estate and personal property taxes and assessments, in each case, with the applicable Seller responsible for taxes attributable to the portion of the tax year which is prior to the Closing Date and the applicable Purchaser responsible for taxes attributable to the remainder of the tax year (which prorations shall be calculated on the basis of the most recent available tax bxxx if the current bxxx is not then available);
B. 4.4.2 sales, occupancy, room, telecommunications, beverage and similar taxes to which the rent payable by tenants operations of any Hotel is subject (the taxes in this Section 4.4.2, “Hotel Taxes”), in each case, with the applicable Seller responsible for taxes attributable to the portion of the tax period which is prior to the Closing Date and the applicable Purchaser responsible for taxes attributable to the portion of the tax period after the Closing Date;
4.4.3 monthly rents and other fixed periodic payments under the Commercial Leases; provided that no proration shall be made of any rent and all or other sums revenue item which are due and payable to MLP by any tenant but uncollected is overdue as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected rent and other sums owed by tenants. MRY3 shall promptly remit to MLP any Closing Date until such rent or other sums revenue item is actually received, at which time it shall be prorated and paid to the applicable Purchaser or the applicable Seller in accordance with the terms of this Agreement. To the extent the applicable Purchaser receives rents (including operating expense, tax and insurance charges payable by scheduled tenants) on or after the Closing Date, notwithstanding such payments shall be applied first toward the payment in full of all rents and other amounts due to such Purchaser with respect to periods following Closing, then allocated for the month of Closing and thereafter the balance applied to delinquent rents or other amounts due to Sellers, with Sellers’ share thereof being delivered to Seller within five (5) days after such Purchaser’s receipt of such amounts;
4.4.4 if the Debt Assumption is consummated, interest and other charges (other than principal) under the Assumed Debt that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for have accrued with respect to periods prior to the Effective Time on a monthly basis for six consecutive months following Closing Date shall be the Effective Time. For amounts due MLP not collected within thirty (30) days responsibility of the applicable Sellers of the Encumbered Hotel Assets, and interest and other charges under the Assumed Debt in respect of any period after and including the Effective Time, MLP Closing Date shall have be the right to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial Leaseresponsibility of the applicable Purchaser;
C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. 4.4.5 water, electric, telephone and all other utility and fuel charges with respect to (on the Propertiesbasis of the number of days in each applicable bxxx occurring prior to, and on or after, the Closing Date) and fuel on hand (at cost plus sales tax); provided, however, that any assignable deposits with utility companies specifically allocable to shall remain the Properties (said assignable deposits being credited to MLP) (to property of the extent possible, utility prorations will applicable Seller and shall not be handled by meter readings on the Effective Time)prorated or credited;
E. 4.4.6 amounts due and prepayments payable by the applicable Seller under the Other Assumed Service Contracts and any unamortized portion of any lump sum or Equipment Leasesup-front payments paid by such Seller under Assumed Service Contracts;
F. 4.4.7 assignable license and permit fees;
G. amounts 4.4.8 rents and other periodic charges under Ground Leases;
4.4.9 accrued and unpaid tour and travel agent commissions;
4.4.10 the balance (less any contested charges) of the open and unpaid account (“Guest Ledger Account”) for each person who is a guest at a Hotel on the day immediately preceding the Closing Date shall be assigned to the applicable Purchaser and prorated between the applicable Seller and the applicable Purchaser as follows:
(a) all room revenue posted for all days preceding the Closing Date shall belong to the applicable Seller (but shall be paid over to such Seller only as and when actually collected (less reasonable administrative and collection costs), except for the day immediately preceding the Closing Date, which shall be allocated one-half to the applicable Purchaser and one-half to the applicable Seller. The applicable Seller shall be responsible for all taxes and franchise fees for all guest charges preceding the Closing Date, except for the day immediately preceding the Closing Date, which shall be allocated one-half to the applicable Purchaser and one-half to the applicable Seller; and
(b) all room revenue posted for all days on and after the Closing Date shall be allocated to the applicable Purchaser;
4.4.11 any accounts receivable outstanding as of Closing shall be assigned to the applicable Purchaser, and the amount of the same increasing the Purchase Price payable to the Seller to which such accounts receivable relate; provided, however, that the increase in the Purchase Price with respect to accounts receivable which are (a) outstanding for thirty (30) days or less at Closing shall be one hundred percent (100%) of such receivables, (b) outstanding for a period between thirty-one (31) to sixty (60) days at Closing shall be ninety percent (90%) of such receivables; and (c) outstanding for a period between sixty-one (61) to ninety (90) days at Closing shall be seventy-five percent (75%) of such receivables; and there shall be no increase in the Purchase Price for any accounts receivable which are more than ninety (90) days outstanding at Closing;
4.4.12 any outstanding deposits or advance payments received and retained by or on behalf of any Seller in connection with any reservation at a Hotel, in the form of a credit against the Purchase Price payable to such Seller;
4.4.13 any gift certificate or other writing (other than trade agreements and food and beverage discount coupons) issued by any Seller or manager of a Hotel which entitles the holder or bearer to a credit (whether in a specified dollar amount or for a specified item, such as a room night or meal) to be applied against the usual charge for rooms, meals and/or other goods or services at any Hotel, in the form of a credit against the Purchase Price to such Seller;
4.4.14 the outstanding balance of all security deposits under the Leases;
4.4.15 all cash on hand at each Hotel, with such cash retained by the applicable Purchaser and the amount of the same increasing the Purchase Price payable to the Seller that owns the applicable Hotel (Sellers shall perform, or cause to be performed, an accounting of cash on hand at the Property (i.e., in house banks, pxxxx cash, including till money and, to the extent the same are the property of Sellers, vending machines and pay telephones) in the presence of a representative of Purchaser);
4.4.16 if the Debt Assumption is consummated, all cash and cash equivalents held in respect of the Assumed Debt and not released to the Sellers owning the Encumbered Hotel Assets at or prior to the Closing (such as escrows and reserves for taxes, insurance, FF&E reserves, etc.) (but the rights with respect to which are assigned to the applicable Purchaser) and the amount of the same increasing the Purchase Price payable to the applicable Sellers owning the Encumbered Hotel Assets; and
4.4.17 The Purchase Price shall be further adjusted at the Closing in respect of property improvement plans required in connection with the Clay Contracts provided Replacement Franchise Agreements as follows:
(a) In the event that amounts receivable which are due no Excluded Hotel Asset has been substituted for a Hotel Asset in accordance with the express terms of Section 2.6 hereof, the Purchase Price shall be reduced by Seven Million Five Hundred Thousand and payable No/100ths Dollars ($7,500,000.00).
(b) If one or more Excluded Hotel Assets (collectively, the “Substitute Properties”) have been substituted for one or more Hotel Assets (collectively, the “Removed Properties”) in accordance with the express terms of Section 2.6 hereof, the Purchase Price shall be reduced by an amount equal to MLP under (i) Seven Million Five Hundred Thousand and No/100ths Dollars ($7,500,000.00), plus (ii) (A) fifty-percent (50%) of (B) the Clay Contracts but uncollected as figure that is equal to (x) the total of the Effective Time Agreed PIP Allocation for each of the Substitute Properties less (y) the total of the Agreed PIP Allocation for each of the Removed Properties (such amount determined by clauses (i) and (ii), the “PIP Adjustment”) (for the avoidance of doubt, if the PIP Adjustment is a negative number, the Purchase Price shall not be adjustedreduced); provided, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for however, that if the period prior to PIP Adjustment is a positive number, the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as total reduction of the most recent date availablePurchase Price under this Section 4.4.17(b) shall under no circumstances exceed Fifteen Million and No/100ths Dollars ($15,000,000), regardless of all such past due but uncollected receivables. MRY3 the Agreed PIP Allocation of the Substituted Properties.
(c) The adjustments described in Sections 4.4.17(a) and 4.4.17(b) shall promptly remit to MLP any such receivables paid under reduce the Clay Contractsportion of the Purchase Price consisting of the Cash Consideration and be spread ratably across the Allocated Purchase Prices for each Hotel Asset set forth on Schedule 2 (or, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination case of any insurance policies maintained by MLP prior to the Effective Time Excluded Hotel Asset that has been substituted in accordance with respect to the PropertiesSection 2.6, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be finalSchedule 8).
Appears in 1 contract
Samples: Real Estate Sale Agreement (American Realty Capital Hospitality Trust, Inc.)
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to Seller shall prepare the Effective Time) Closing Statement of the prorations and a proposed statement of prorations, and other adjustments shall be prepared required by MRY3 in conformity with the provisions of this Agreement not less than three and submit it to Purchaser for Purchaser’s review and approval at least four (34) business days prior to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective TimeClosing Date. The following items are to be prorated or adjusted, adjusted (as the case may require, appropriate) as of the Effective close of business on the Closing Date, it being understood that for purposes of prorations and adjustments, Seller shall be deemed the owner of the Property prior to such day and Purchaser shall be deemed the owner of the Property as of the Closing Date; provided, however, that if Purchaser’s funds are not received by Seller prior to 5:00 p.m. (Eastern Standard Time) on the Closing Date, then Seller shall be deemed the owner of the Property on such day and Purchaser shall be deemed the owner of the Property as of the day after the Closing Date:
A. 5.4.1 Current real estate and personal property taxes and assessmentsassessments shall be prorated in accordance with Section 5.6 hereof;
B. the rent payable 5.4.2 all rents, including without limitation all basic rent, additional rent, percentage rent, CAM charges, tenant real estate tax reimbursements and all amounts actually collected by Seller prior to Closing from tenants under the Commercial LeasesLeases (collectively referred to as “Rents”), shall be prorated and adjusted as of the Closing Date based upon the number of days in the month in which the Closing occurs with Rents from and after the date of Closing allocated to Purchaser; provided provided, however Rents that rent and all other sums which are due and payable to MLP Seller by any tenant but uncollected as of the Effective Time Closing (collectively, “Delinquent Amounts”) shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and Purchaser shall cause the rent and other sums for the period prior to the Effective Time such Delinquent Amounts to be remitted to MLP Seller if, as and when collectedcollected subject to this Section 5.4.2. On the Effective TimeAt Closing, MLP Seller shall deliver to MRY3 Purchaser a schedule (prepared by MLP as of the most recent date available) of all such past Delinquent Amounts (provided, however, that in the event any Delinquent Amount is inadvertently omitted from such schedule, Seller shall not be deemed to have waived its rights to such Delinquent Amounts). Any amounts collected by Purchaser after Closing from tenants that had Delinquent Amounts shall be applied as follows: (i) first, in payment of current Rents at the time of receipt, (ii) second, to Delinquent Amounts, if any, which became due but uncollected rent and other sums on or after Closing, (iii) third, in payment of Rents owed by tenants. MRY3 shall promptly remit such tenant for the month in which the Closing occurs, and (iv) then, to MLP any such rent or other sums paid by scheduled tenantsDelinquent Amounts, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods if any, which became due prior to the Effective Time on a monthly basis for six consecutive months following Closing. Any prepaid Rents attributable to the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP Closing Date or later shall have the right be credited to xxx to collect same, but in no event may MLP seek to evict any tenant or terminate any Commercial LeasePurchaser;
C. 5.4.3 the full amount of unapplied security deposits paid held by Seller under the Commercial Leases, to the extent unapplied, together with Leases (including all interest earned thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent rents and other obligations of the tenants;
D. water, electric, telephone and all other utility charges with respect to the Properties, and any assignable deposits with utility companies specifically allocable to the Properties (said assignable deposits being will be credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time)Purchaser;
E. amounts due and prepayments under the Other Contracts or Equipment Leases;
F. assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time with respect to the Properties, and shall be entitled to any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on the Effective Time shall be re-prorated and finally adjusted as soon as practicable after the Effective Time; otherwise, all prorations shall be final.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Phillips Edison Grocery Center REIT III, Inc.)
Closing Prorations and Adjustments. (a) A rent roll (updated With respect to within 15 days each of the First Pool Closing and the Second Pool Closing, Sellers shall prepare a separate Closing Statement of the prorations and adjustments required by this Agreement with respect to, as applicable, the First Pool Assets and the Second Pool Assets and submit it to Purchaser at least 10 Business Days prior to the Effective Time) and a proposed statement of prorationsapplicable Closing Date, and other adjustments shall which Closing Statement must be prepared by MRY3 in conformity with the provisions of this Agreement not less than three (3) business days prior reasonably acceptable to the Effective Time. For purposes of prorations, each Assignment shall be deemed to have occurred as of 12:01 a.m. on the date of the Effective TimePurchaser. The following items are to be prorated or prorated, adjusted, credited or paid directly by Seller in cash (as the case may require, as applicable Seller determines to be appropriate to comply with the applicable Tax rules governing transactions qualifying under Section 1031 of the Effective TimeCode), it being understood that for purposes of prorations and adjustments, the applicable Seller shall be deemed to be the owner of the applicable Property prior to but not including the applicable Closing Date and Purchaser shall be deemed to be the owner of the applicable Property on and following the applicable Closing Date:
A. 4.4.1 real estate and personal property taxes Taxes and assessments;
B. , in each case, with the rent payable by tenants under applicable Seller responsible for Taxes attributable to the Commercial Leases; provided that rent and all other sums which are due and payable to MLP by any tenant but uncollected as portion of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums for the period Tax year which is prior to the Effective Time applicable Closing Date and Purchaser responsible for Taxes attributable to the remainder of the Tax year (which prorations shall be remitted to MLP if, as and when collected. On calculated on the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as basis of the most recent date available Tax bxxx if the current bxxx is not then available) );
4.4.2 sales, occupancy, room, telecommunications, beverage and similar Taxes to which the operations of all such past due but uncollected rent any Hotel is subject (the Taxes in this Section 4.4.2, “Hotel Taxes”), in each case, with the applicable Seller responsible for Hotel Taxes attributable to the portion of the Tax period which is prior to the applicable Closing Date and Purchaser responsible for Hotel Taxes attributable to the portion of the Tax period on or after the applicable Closing Date;
4.4.3 monthly rents and other sums owed by tenants. MRY3 fixed periodic payments under the Leases assigned to Purchaser in accordance with the terms of this Agreement; provided that no proration shall promptly remit to MLP be made of any rent or other revenue item which is overdue as of the applicable Closing Date until such rent or other sums revenue item is actually received, at which time it shall be prorated and paid to Purchaser or the applicable Seller in accordance with the terms of this Agreement. To the extent Purchaser receives rents (including operating expense, Tax and insurance charges payable by scheduled tenants, notwithstanding that a deficiency in the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time ) on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days or after the Effective Timeapplicable Closing Date that are not included as accounts receivable subject to Section 4.4.9, MLP such payments, less reasonable costs of collection, shall have be applied first toward the right to xxx to collect same, but payment in no event may MLP seek to evict any tenant or terminate any Commercial Lease;
C. the full amount of security deposits paid under the Commercial Leases, to the extent unapplied, together with interest thereon if required by law or otherwise; provided that (to the extent permitted by applicable law) MLP shall have the right to apply security deposits, if any, against delinquent all rents and other obligations amounts due to Purchaser with respect to periods following the applicable Closing, then allocated for the month of the tenantsapplicable Closing and thereafter the balance applied to delinquent rents or other amounts due to Sellers, with Sellers’ share thereof being delivered to Seller within five days after Purchaser’s receipt of such amounts;
D. 4.4.4 water, electric, telephone and all other utility and fuel charges with respect to (on the Propertiesbasis of the number of days in each applicable bxxx occurring prior to, and on or after, the applicable Closing Date) and fuel on hand (at cost plus sales Tax); provided, however, that any assignable deposits with utility companies specifically allocable to shall remain the Properties (said assignable deposits being credited to MLP) (to property of the extent possible, utility prorations will applicable Seller and shall not be handled by meter readings on the Effective Time)prorated or credited;
E. 4.4.5 amounts due and prepayments payable by the applicable Seller under the Other Service Contracts or Equipment Leasesassigned to Purchaser at the applicable Closing in accordance with the terms of this Agreement;
F. 4.4.6 assignable license and permit fees;
G. 4.4.7 accrued and unpaid tour and travel agent commissions;
4.4.8 the balance (less any contested charges) of the open and unpaid account (“Guest Ledger Account”) for each person who is a guest at a Hotel on the day immediately preceding the applicable Closing Date shall be assigned to Purchaser and prorated between the applicable Seller and Purchaser as follows:
(a) all room revenue posted for all days preceding the applicable Closing Date shall belong to the applicable Seller but shall be paid over to such Seller only as and when actually collected (less reasonable administrative and collection costs), except for the day immediately preceding the applicable Closing Date, which shall be allocated one-half to Purchaser and one-half to the applicable Seller. The applicable Seller shall be responsible for all Taxes and franchise fees for all guest charges preceding the applicable Closing Date, except for the day immediately preceding the applicable Closing Date, which shall be allocated one-half to Purchaser and one-half to the applicable Seller; and
(b) all room revenue posted for all days on and after the applicable Closing Date shall be allocated to Purchaser;
4.4.9 any accounts receivable with respect to a Hotel accruing prior to 11:59 local time (with respect to the applicable Hotel) on the day immediately preceding the applicable Closing Date (“Accounts Receivable”) will not be transferred to Purchaser at such Closing, but rather will be retained by the applicable Seller. Purchaser will deliver to the applicable Seller (and shall promptly instruct the applicable property manager, as its agent, to deliver to the applicable Seller) all checks and other forms of payments received by Purchaser at such Hotel that constitute payment of all or part of any Account Receivable. Payments received from payors owing payment both on an Account Receivable and on an account payable for goods or services rendered on or after the applicable Closing Date will be applied first in accordance with the invoice for which the payment is invoiced (including any designation included in an invoice from internet travel providers or other vendors covering multiple transactions). Any payments from payors that owe amounts receivable on Accounts Receivable and also owe amounts on an account payable for goods or services rendered on or after the applicable Closing Date to Purchaser which do not include such a designation shall be applied first to current amounts (i.e., payments not more than 60 days past due and not being disputed by the payee on Accounts Receivable), then to Purchaser to be applied to amounts owing to Purchaser and any excess shall be applied to any other Accounts Receivable from that payor;
4.4.10 any outstanding deposits or advance payments received and retained by or on behalf of any Seller in connection with any reservation at a Hotel, in the form of a credit against (i.e., a reduction of) the applicable Purchase Price payable to such Seller;
4.4.11 any gift certificate or other writing (other than trade agreements and food and beverage discount coupons) issued by any Seller or manager of a Hotel which entitles the holder or bearer to a credit (whether in a specified dollar amount or for a specified item, such as a room night or meal) to be applied against the usual charge for rooms, meals and/or other goods or services at any Hotel, in the form of a credit against (i.e., a reduction of) the applicable Purchase Price to such Seller;
4.4.12 the outstanding balance of all security deposits under the Leases assigned to Purchaser at the applicable Closing in accordance with the terms of this Agreement;
4.4.13 all cash on hand at each Hotel, with such cash retained by Purchaser and the amount of the same increasing the applicable Purchase Price payable to the Seller that owns the applicable Hotel (Sellers shall perform, or cause to be performed, an accounting of cash on hand at the Property (i.e., in house banks, pxxxx cash, including till money and, to the extent the same are the property of Sellers, vending machines and pay telephones) in the presence of a representative of Purchaser);
4.4.14 any utility deposits with any utility in respect of the operation of a Hotel shall be deemed to have been sold to Purchaser and shall become the property of Purchaser and the amount of the same increasing the applicable Purchase Price to the Seller that owns the applicable Hotel; and
4.4.15 such other items as are usually and customarily prorated between purchasers and sellers of hotel properties in the location of the applicable Real Property. The Purchase Price shall be further adjusted at each Closing in respect of property improvement plans required in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected Replacement Franchise Agreements as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collectedset forth in Section 4.7. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date available) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; and
I. MLP shall be responsible for paying all premiums, fees and other costs associated with the maintenance or termination of any insurance policies maintained by MLP prior to the Effective Time Except with respect to the Properties, general real estate and personal property Taxes (which shall be entitled to reprorated upon the issuance of the actual bills), any refunds in connection with the termination of said policies. The net amount of any prorations shall be paid in cash on the Effective Time to MLP or MRY3, as the case may be, by the other party. Any proration which must be estimated on at the Effective Time applicable Closing shall be re-prorated reprorated and finally adjusted as soon as practicable on the date that is 365 days after the Effective Timeapplicable Closing Date; otherwise, all prorations shall be final. No later than 350 days after each Closing Date, Purchaser shall prepare and deliver to Sellers a final Closing Statement with respect to such Closing; provided that if Purchaser shall fail to deliver such final Closing Statement within such 350-day period, Sellers may prepare and deliver such statement to Purchaser (and Purchaser shall cooperate fully with Sellers’ efforts to do the same). If within 10 days following the delivery of the final Closing Statement to either Sellers or Purchaser, as applicable, Sellers or Purchaser, as applicable, have/has not given the other written notice of its objection as to the amount of final prorations (which notice shall state the basis of Sellers’ or Purchaser’s objection, as applicable), such amount shall be paid over to Sellers or Purchaser, as applicable, within three Business Days thereof. If Sellers or Purchaser, as applicable, duly give/gives the other such written objection notice, and if Sellers and Purchaser fail to resolve in good faith the issues outstanding with respect to the amount of final prorations within thirty 30 days of the applicable party’s receipt of such written objection notice, Sellers and Purchaser shall submit the issues remaining in dispute to Ernst & Young (the “Independent Accountants”) for resolution. If issues are submitted to the Independent Accountants for resolution, (i) Sellers and Purchaser shall furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that party or its agents and shall be afforded the opportunity to present to the Independent Accountants any material relating to the disputed issues and to discuss the issues with the Independent Accountants; (ii) the determination by the Independent Accountants, as set forth in a notice to be delivered to both Sellers and Purchaser within 60 days of the submission to the Independent Accountants of the issues remaining in dispute, shall be final, binding and conclusive on the parties; and (iii) Sellers and Purchaser will each bear fifty percent (50%) of the fees and costs of the Independent Accountants for such determination. Purchaser shall have the exclusive right to seek adjustments to real estate, ad valorem and/or personal property Tax rates imposed upon and/or assessed values ascribed to one or more of the Real Properties (any such actions being collectively referred to as “Tax Appeals”) with respect to periods occurring following the Tax year in which the Closing of such Real Properties occurs (such periods, “Purchaser’s Period”), but shall promptly pay over to Sellers the portion of any such Tax refund applicable to periods occurring entirely prior to Purchaser’s Period (such periods, “Sellers’ Period”), in each case after deducting any expenses incurred relating to the applicable Tax Appeal. From and after the applicable Closing Date, subject to the foregoing qualifications, Sellers shall take all actions and execute and deliver all documents Purchaser reasonably requests in order to enable Purchaser to pursue any Tax Appeal solely with respect to Purchaser’s Period at no out-of-pocket expense to Sellers. Subject to the foregoing qualifications, Sellers hereby agree to execute all consents, receipts, instruments and documents which may reasonably be requested in order to facilitate settling any Tax Appeal proceeding commenced by Purchaser in accordance with this paragraph and collecting the amount of any Tax refund with respect thereto. This Section 4.4 shall survive each applicable Closing.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (American Realty Capital Hospitality Trust, Inc.)
Closing Prorations and Adjustments. (a) A rent roll (updated to within 15 days prior to the Effective Time) and a proposed statement Statements of prorations, prorations and other adjustments shall be prepared by MRY3 Seller in conformity with the provisions of this Agreement and submitted to Purchaser for review and approval not less than three (3) business days prior to the Effective TimeClosing Date. For purposes of prorations, each Assignment Purchaser shall be deemed to have occurred as the owner of 12:01 a.m. the Property on the date of Closing Date. In addition to prorations and other adjustments that may otherwise be provided for in this Agreement, the Effective Time. The following items are to be prorated or adjusted, as the case may require, as of the Effective TimeClosing Date:
A. (i) If not paid by the Tenants pursuant to the Leases (the “Tenants”), real estate and personal property taxes and assessments;
B. assessments (initially prorated on the rent payable by tenants under the Commercial Leases; provided that rent and all other sums which are due and payable to MLP by any tenant but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due rents and shall cause the rent and other sums for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as basis of the most recent date available) ascertainable xxxx, but subject to reproration upon issuance of the actual xxxx therefor to effectuate the actual proration), provided that Seller shall pay prior to Closing or give Purchaser a credit at Closing for, the amount of all installments of special assessments levied prior to Closing and which are payable after Closing;
(ii) Seller and Purchaser shall prorate the rent, charges and other amounts payable by Tenants to Seller for the month of Closing, including expense “pass-throughs” which are due for the month of Closing. With respect to rent, charges and other amounts payable by Tenants to Seller (including expense “pass-throughs”) for months prior to the month of Closing (“Delinquent Amounts”), Purchaser shall make a commercially reasonable good faith effort to collect such past due Delinquent Amounts for a period of three months following Closing), but uncollected Purchaser shall not be required to take legal action with respect to Delinquent Amounts. At Closing, Seller shall deliver to Purchaser a schedule of all Delinquent Amounts. Notwithstanding the foregoing or any direction from Tenants to the contrary, rental and other payments received by Purchaser from Tenants shall first be applied toward Purchaser’s actual out-of-pocket costs of collection, then toward the payment of rent and other sums charges owed by tenantsto Purchaser for periods after the Closing, and any excess monies received shall be applied toward the payment of Delinquent Amounts. MRY3 shall promptly remit Purchaser may not waive any Delinquent Amounts or modify any Lease so as to MLP reduce amounts or charges owed under any such rent Lease for any period in which Seller is entitled to receive a share of charges or other sums paid by scheduled tenantsamounts, notwithstanding that a deficiency in without first obtaining the then current rent is thereby created. MRY3 shall xxxx tenants who owe rent for periods prior to the Effective Time on a monthly basis for six consecutive months following the Effective Time. For amounts due MLP not collected within thirty (30) days after the Effective Time, MLP written consent of Seller and Seller shall have the right to xxx collect same after Closing. Purchaser shall make year-end reconciliations of reimbursements owed by Tenants under the Leases to collect the landlord thereunder of the Tenants’ share of property taxes and assessments, insurance premiums, common area maintenance and other expenses related to the operation of the Property for the calendar year 2016 (collectively, “Reimbursable Tenant Expenses”). In order to enable Purchaser to make any year-end reconciliations of Reimbursable Tenant Expenses for calendar year 2016, Seller shall deliver to Purchaser, in writing, within sixty (60) days after the Closing Date, the Reimbursable Tenant Expenses actually paid or incurred by Seller for the portion of the calendar year 2016 during which Seller owned the Property (“Seller’s Actual Reimbursable Tenant Expenses”) and the Tenants’ reimbursements for such Reimbursable Tenant Expenses actually paid to Seller by Tenants for the portion of the calendar year 2016 during which Seller owned the Property (“Seller’s Actual Tenant Reimbursements”). On or before March 31, 2017, Purchaser shall deliver to Seller a reconciliation statement (the “Reconciliation Statement”) setting forth (i) the Actual Reimbursable Tenant Expenses paid or incurred during calendar year 2016, (ii) the Actual Tenant Reimbursements actually paid in calendar year 2016, and (iii) a calculation of the difference between the two (i.e., establishing that the Actual Reimbursable Tenant Expenses were either more or less than the Actual Tenant Reimbursements for the calendar year 2016), with Purchaser utilizing the information delivered to Purchaser by Seller related to the period of the calendar year 2016 which is prior to the Closing Date. Any amount due Seller pursuant to the foregoing calculation (in the event Seller’s Actual Tenant Reimbursements for the period January 1 to the date prior to Closing are less than Seller’s Actual Reimbursable Tenant Expenses for the same period) or Purchaser (in the event the Actual Tenant Reimbursements are more than the Actual Reimbursable Tenant Expenses), as the case may be, shall be paid by Purchaser to Seller within fourteen (14) business days after Purchaser has collected such sums from any tenant who owes same, but or if Seller owes Purchaser for any such sum, Seller shall pay to Purchaser within fourteen (14) business days after delivery of the Reconciliation Statement to Seller, all such sums owed by Seller to Purchaser. If Purchaser is paid any such amount by Seller, Purchaser thereafter shall be obligated to promptly remit the applicable portion to the Tenants entitled thereto. If Purchaser has transferred its interest in no event may MLP seek the Property to evict any tenant a successor-in-interest or terminate any Commercial Leaseassignee prior to such date, then, on or before the transfer of its interest in the Property, Purchaser shall (i) in writing expressly obligate such successor-in-interest or assignee to be bound by the provisions of this Section, and (ii) deliver written notice of such transfer to Seller, and thereafter Seller shall make the deliveries specified above to Purchaser’s successor-in-interest or assignee. Seller’s Reconciliation Statement shall be final and binding for purposes of this Contract;
C. (iii) the full amount of the security deposits deposits, paid under the Commercial Leases, to the extent unappliedif any, and not theretofore applied, together with interest thereon if to the extent any interest is required by law or otherwise; provided that (otherwise to be paid to the extent permitted Tenants, shall be delivered by applicable law) MLP Seller to Purchaser on the date of Closing. Prior to the Closing, Seller shall have not apply the right to apply security deposits, if any, against delinquent rents and other obligations of the tenantsdeposit;
D. (iv) water, electric, telephone and all other utility and fuel charges with respect not paid by the Tenants under the Leases shall be prorated ratably on the basis of the last ascertainable bills (and reprorated upon receipt of the actual bills or invoices) unless final meter readings and final invoices can be obtained. To the extent practicable, if Tenants do not pay the water, electric, telephone and other utility charges pursuant to the PropertiesLeases, and any assignable deposits with utility companies specifically allocable Seller shall cause meters for utilities to be read not more than one (1) business day prior to the Properties (said assignable deposits being credited to MLP) (to the extent possible, utility prorations will be handled by meter readings on the Effective Time)date of Closing;
E. (v) amounts due and prepayments paid or owing under the Other Contracts or Equipment Leasesany Assumed Service Contracts, if any;
F. (vi) assignable license and permit fees;
G. amounts receivable in connection with the Clay Contracts provided that amounts receivable which are due and payable to MLP under the Clay Contracts but uncollected as of the Effective Time shall not be adjusted, but MRY3 shall use diligent efforts to collect said past-due amounts and shall cause such amounts receivable for the period prior to the Effective Time to be remitted to MLP if, as and when collected. On the Effective Time, MLP shall deliver to MRY3 a schedule (prepared by MLP as of the most recent date availablevii) of all such past due but uncollected receivables. MRY3 shall promptly remit to MLP any such receivables paid under the Clay Contracts, notwithstanding that a deficiency in the then current receivables is thereby created;
H. other expenses of operation and similar items customarily prorated in connection with real estate closings for similar properties in the locality in question; anditems;
I. MLP (viii) Seller shall be responsible for paying all premiums, fees leasing commissions and other leasing costs associated with the maintenance or termination of any insurance policies maintained by MLP due and payable prior to the Effective Time Date with respect to the Properties, and Leases. Purchaser shall be entitled responsible for all leasing commissions and other leasing costs attributable to the Leases or the renewal, extension or expansion of the Leases due and payable after the Effective Date. If Seller has, prior to the Closing, paid any refunds leasing commissions or other leasing costs which are Purchaser’s responsibility hereunder, Seller will receive a credit for same from Purchaser at the Closing. Purchaser shall have no obligation to pay for any leasing commissions in connection with the termination initial terms of the Leases. This subsection shall survive Closing;
(ix) The scheduled improvements to the elevators located in the building (the “Elevator Work”) shall be the responsibility of Seller. Purchaser and Seller acknowledge and agree that the estimated cost of the Elevator Work is Eighty-Six Thousand and 00/100 Dollars ($86,000.00) and that the Elevator Work will not be complete by the date of Closing. Irrespective of the actual cost and timing of the Elevator Work, Seller is solely responsible for contracting and paying for the Elevator Work. At Closing, Escrowee shall retain Eighty-Six Thousand and 00/100 Dollars ($86,000.00) of the Cash Balance (the “Holdback”) in escrow pursuant to the Escrow Agreement attached hereto as Exhibit E until Seller’s architect or engineer, duly certified and licensed by the State of North Carolina, delivers to Escrowee (copied to Buyer) a certification that the Elevator Work is complete. Upon receipt of said policies. The net amount certification, Escrowee shall release the Holdback to Seller; and
(x) All obligations to pay Tenant improvement work owed or to be owed in connection with extension or renewal terms of any prorations the Leases shall be paid by Purchaser when due after the Closing Date without an adjustment to the Purchase Price. Notwithstanding the foregoing, to the extent any portion of the term of the Leases for which Purchaser shall pay the Tenant improvement cost in cash on connection therewith occurs prior to the Effective Time Closing Date, the amount of the Purchase Price will be reduced by a pro rata share of such cost based upon the percentage of such term (exclusive of any renewal options) which occurs prior to MLP or MRY3the Closing Date. Except with respect to general real estate and personal property taxes (which shall be reprorated upon the issuance of the actual bills, as if necessary), and expense “pass throughs” (which shall be trued up within the case may be, by the other party. Any sixty (60) day period set forth above) any proration which must be estimated on the Effective Time at Closing shall be re-prorated reprorated and finally adjusted as soon as practicable after the Effective Time; otherwiseClosing Date with any refunds payable to Seller or Purchaser to be made as soon as practicable after such amounts are determined, otherwise all prorations shall be final. Amounts on deposit with utility companies shall be disclosed to Purchaser within ten (10) days after the Effective Date and shall not be prorated; provided, however, that promptly following the Closing, Purchaser shall substitute its own deposit for any amounts on deposit with utility companies and shall refund to Seller any portion of Seller’s deposit which is refunded by the utility company. The rights, covenants and obligations contained in this Paragraph 5(c) shall survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Highwoods Realty LTD Partnership)
