Other Prorations Water and sewer charges, propane, interest on continuing loan, and .
Prorations The following shall be prorated between Buyer and Seller as of 11:59 p.m. local time of the day immediately preceding the Closing Date, on the basis of the actual number of days elapsed during the month in which the Closing occurs: general and special county and city real property taxes and special assessments (collectively, "Taxes") for the tax period then in effect and insurance premiums (but only if Buyer is assuming Seller's insurance policy or policies). Proration of Taxes shall be based on the most recent official tax bills or notice of valuation available for the fiscal year in which the Closing occurs, with due allowance to be made for the maximum available discount or other exemptions to the extent permissible for said year, and to the extent the tax bills do not accurately reflect the actual Taxes assessed against the Property (or any portion of the Property) and allocable either to the period before the Closing or to the period after the Closing, then Buyer and Seller shall adjust the actual Taxes between Buyer and Seller, outside of Escrow, as soon as reasonably possible following the Closing. In addition to the foregoing apportionments, Seller shall receive all rents and other income accrued, and shall pay all other expenses accrued or incurred, in connection with the ownership or operation of Property before the Closing Date, and Buyer shall receive all rents and other income accruing, and shall pay all other expenses accrued or incurred, in connection with the ownership or operation of Property on or after the Closing Date, all of which rents, other income and expenses shall be prorated as of the Closing. Rents and other income, if any, collected by Buyer after the Closing shall be applied first to any amounts due to Buyer and then, to the extent such rents or other income relate to the period ending on or before the Closing, such rents or other income shall be paid to Seller within ten (10) days after end of the month in which such amounts were collected. Buyer shall incur no obligation to Seller for Buyer's failure to collect such rentals or other income. All security and any other refundable deposits paid by tenants to Seller pursuant to tenant leases shall be delivered by certified funds to Buyer at the Closing or, at Seller's option, credited to Buyer against the cash portion of the Purchase Price at the Closing. Escrow Holder shall not be concerned with any prorations that are to be made after the Closing pursuant to this Agreement.
Proration (a) The allocation of rights to receive the Cash Consideration and the Stock Consideration among Holders will be made as set forth in this Section 2.2(a) (with the Exchange Agent to determine, consistent with Section 2.3(c), whether fractions of Cash Election Shares, Stock Election Shares or Non-Election Shares, as applicable, shall be rounded up or down).
(i) If the Stock Election Number exceeds the Stock Conversion Number, then all Cash Election Shares and all Non-Election Shares shall be converted into the right to receive the Cash Consideration and, subject to Section 2.5(f) hereof, each holder of Stock Election Shares will be entitled to receive the Stock Consideration in respect of that number of Stock Election Shares held by such holder equal to the product obtained by multiplying (x) the number of Stock Election Shares held by such holder by (y) a fraction, the numerator of which is the Stock Conversion Number and the denominator of which is the Stock Election Number, with the remaining number of such holder’s Stock Election Shares being converted into the right to receive the Cash Consideration; and
(ii) If the Stock Election Number is less than the Stock Conversion Number (the amount by which the Stock Conversion Number exceeds the Stock Election Number being referred to herein as the “Shortfall Number”), then all Stock Election Shares shall be converted into the right to receive the Stock Consideration and the Non-Election Shares and the Cash Election Shares shall be treated in the following manner:
(A) If the Shortfall Number is less than or equal to the number of Non-Election Shares, then all Cash Election Shares shall be converted into the right to receive the Cash Consideration and, subject to Section 2.5(f) hereof, each holder of Non-Election Shares shall receive the Stock Consideration in respect of that number of Non-Election Shares held by such holder equal to the product obtained by multiplying (x) the number of Non-Election Shares held by such holder by (y) a fraction, the numerator of which is the Shortfall Number and the denominator of which is the total number of Non-Election Shares, with the remaining number of such holder’s Non-Election Shares being converted into the right to receive the Cash Consideration; or
(B) If the Shortfall Number exceeds the number of Non-Election Shares, then all Non-Election Shares shall be converted into the right to receive the Stock Consideration and, subject to Section 2.5(f) hereof, each holder of Cash Election Shares shall receive the Stock Consideration in respect of that number of Cash Election Shares equal to the product obtained by multiplying (x) the number of Cash Election Shares held by such holder by (y) a fraction, the numerator of which is the amount by which (1) the Shortfall Number exceeds (2) the total number of Non-Election Shares, and the denominator of which is the total number of Cash Election Shares, with the remaining number of such holder’s Cash Election Shares being converted into the right to receive the Cash Consideration.
Adjustments and Prorations The following adjustments and prorations shall be made at Closing:
Closing Costs and Prorations Taxes and assessments for the current year, if any, shall be prorated between the prior owner of the Personal Property and Buyer as of the date of closing. Seller shall pay one-half (½) of Closing Agent’s closing and escrow fees. Buyer shall pay one-half (½) of Closing Agent’s closing and escrow fees. In addition, Buyer shall pay all other closing costs, including but not limited to: (1) recording fees for the cost of recording the State Deed; (2) the cost for any title insurance purchased at Buyer’s option; (3) lender fees, if any, together with all associated recording fees, if any;
Costs and Prorations (a) At Closing, the Parties shall prorate, without duplication, as of the Closing Date, the following with respect to the Assets:
(i) Solely to the extent (a) payable by the Company and (b) not covered by Section 1.4(a)(iii) or Section 1.4(a)(iv) below, all ad valorem/personal property taxes and current installments of special assessments levied or assessed with respect to the Assets on a daily basis based upon the fiscal year of the appropriate Taxing Authority on an accrual basis.
(ii) All prepaid items and deposits applicable to the operation of the Assets covering periods prior to and after the Closing Date, including all utilities (including gas, water and electricity). The Company shall pay, or cause to be paid, prior to the Closing, all such amounts for which a xxxx has been received for which payments are due prior to the Closing Date, and Purchaser shall be credited, and Seller shall be debited, with an amount equal to all utility charges for the period from the last day covered by any such xxxx until the Closing Date if such utilities will continue to be received.
(iii) Amounts payable under Leases and Permits and other Assets shall be prorated on an accrual basis. The Company shall pay, or cause to be paid, when due all amounts due thereunder prior to the Closing Date. For such amounts due on or after the Closing Date and reflected on the Closing Statement or the Final Closing Statement, Purchaser shall be credited, and Seller shall be debited, for Seller’s prorated share of such amount. For such amounts due on or after the Closing Date, Seller agrees to pay its prorated share when due or to promptly reimburse Purchaser if paid by Purchaser; provided, however, to the extent funds are available, such amounts shall first be paid from the Escrow Fund. Percentage rents based on advertising revenues for periods including days both before and after the Closing Date, and Seller’s prorated share thereof, shall be estimated in good faith by extrapolating the advertising revenue for the period upon which the percentage rents are based by applying the average monthly revenue for the months (or portions thereof) preceding the Closing, to the months (or portions thereof) following Closing. For the avoidance of doubt, (x) paid-up/pre-paid rental on Sign Locations Leases pre-paid not more than twelve (12) months beyond the Closing Date shall be prorated, but (y) paid-up/pre-paid rental on Sign Locations Leases prepaid more than twelve (12) months beyond the Closing Date and perpetual easements shall not be prorated.
(iv) The Purchase Price shall be decreased by: (a) the pro rata portion of the amount of any remaining balance at the Closing Date of credits for advertisements received prior to the Closing Date or other credits due advertisers from Seller or the Company as of the Closing Date; and (b) pre-billed and/or pre-collected accounts receivable items actually collected and for which outdoor advertising services are to be rendered after the Closing Date.
(v) The Purchase Price shall be increased by any amounts posted as security deposit by CCOI or any of its Affiliates with respect to any Assumed Contract (which deposits are not being refunded to CCOI or its Affiliates but rather being retained by the counterparties for the Company’s account).
(b) Seller has prepared, in good faith, a closing statement (the “Closing Statement”) consistent with the foregoing and otherwise consistent with this Agreement and has delivered it, along with reasonably detailed information showing the manner in which the contents of the Closing Statement were calculated, to Purchaser prior to the date of this Agreement. In preparing the Closing Statement, Seller used the best available information, subject to additional adjustment among the Parties after Closing upon receipt of definitive information or final bills; provided, however, that no such adjustments will be made after the Closing Statement becomes final pursuant to Section 1.4(c).
(c) As soon as practicable after the Closing (but in any event within ninety (90) days after the Closing), Seller shall deliver a final Closing Statement (the “Final Closing Statement”) to Purchaser, which Final Closing Statement shall set forth (among the other information described above) the amount of actual Closing Date Indebtedness. Each Party shall provide to the other Party, reasonable access at reasonable times to the books and records of such Party and to appropriate employees and representatives (including independent accountants) as such other Party shall reasonably request in connection with the preparation and review of the Final Closing Statement, or any component thereof or information contained or referred to therein, as the case may be, including all work papers of the accountants who audited, compiled or reviewed such statements or notices (subject to each Party and its representatives entering into any such access letters required by the other Party’s accountants in connection herewith), and shall otherwise cooperate reasonably and in good faith with such other Party to arrive at a final determination of the amounts set forth in the Final Closing Statement. Unless Purchaser notifies Seller in writing within 15 days after Seller’s delivery of the Final Closing Statement of any objection to the matters set forth in the Final Closing Statement (the “Notice of Objection”), the Final Closing Statement shall become final and binding. Any Notice of Objection shall specify in reasonable detail the basis for the objections set forth therein. If Purchaser provides the Notice of Objection to Seller within such 15-day period, Purchaser and Seller shall, during the 30-day period following Seller’s receipt of the Notice of Objection, attempt in good faith to resolve Purchaser’s objections. If Purchaser and Seller are unable to resolve all such objections within such 30-day period, the matters remaining in dispute that were properly included in the Notice of Objection (the “Unresolved Items”) shall be submitted to a nationally recognized independent public accounting firm mutually acceptable to the Parties (the “Accounting Firm”), which Accounting Firm shall resolve such matters; provided that if Purchaser and Seller are unable to agree upon such firm within ten days after the end of such 30-day period, then the Accounting Firm shall be an accounting or valuation firm of national standing appointed by the American Arbitration Association in New York, New York; provided that such firm shall not be the independent auditor of (or otherwise provide services under a contractual arrangement with) either Purchaser (or any of its Affiliates) or Seller (or any of its Affiliates including iHeartMedia, Inc. or any of its Subsidiaries). Each Party shall furnish the Accounting Firm such work papers and other documents and information pertaining to the Unresolved Items still in dispute as the Accounting Firm may reasonably request and shall be afforded an opportunity to discuss such Unresolved Items with the Accounting Firm at such hearing as the Accounting Firm shall request or permit; provided, that (i) each Party shall provide the other Party with a copy of all materials provided to, and communications with, the Accounting Firm, and (ii) no Party (or any of its Affiliates, advisors or representatives) shall engage in any ex parte communication with the Accounting Firm at any time with respect to the Unresolved Items. The Accounting Firm shall only resolve the Unresolved Items. The resolution of the Unresolved Items by the Accounting Firm shall be final and binding, and the determination of the Accounting Firm shall constitute an arbitral award that is final, binding and non-appealable and upon which a judgment may be entered by a court having jurisdiction over the party against which such determination is to be enforced. Purchaser and Seller shall each pay their own costs and expenses incurred under this Section 1.4; provided, however, that the Accounting Firm shall allocate, and Purchaser and Seller shall pay, its fees, costs and expenses between Purchaser and Seller in accordance with the percentage that the portion of the contested amount not awarded to such Parties bears to the amount actually contested by or on behalf of such Parties.
(d) Within five (5) Business Days after the Final Closing Statement is finalized pursuant to clause (c) of this Section 1.4:
(i) If the Closing Consideration delivered on the Closing Date exceeds the final Purchase Price as adjusted pursuant to this Section 1.4 and contained in the Final Closing Statement; Seller shall pay to Purchaser an amount equal to such excess; and
(ii) If the amount of the final Purchase Price as adjusted pursuant to this Section 1.4 and contained in the Final Closing Statement exceeds Closing Consideration delivered on the Closing Date; Purchaser shall pay Seller an amount equal to such excess. Any amount paid with respect to final adjustments to the Purchase Price made pursuant to this Section 1.4 shall be (i) paid by wire transfer of immediately available funds to an account designated by the receiving Party and (ii) treated as an adjustment of the Purchase Price for applicable tax purposes to the extent permitted by Tax Law.
Credits and Prorations (a) The following shall be apportioned with respect to the Property as of 12:01 a.m., on the day of Closing, as if Purchaser were vested with title to the Property during the entire day upon which Closing occurs:
(i) rents, if any, as and when collected (the term “rents” as used in this Agreement includes all payments due and payable by tenants under the Leases);
(ii) taxes (including personal property taxes on the Personal Property) and assessments levied against the Property;
(iii) payments under the Operating Agreements;
(iv) gas, electricity and other utility charges for which Seller is liable, if any, such charges to be apportioned at Closing on the basis of the most recent meter reading occurring prior to Closing; and
(v) any other operating expenses or other items pertaining to the Property which are customarily prorated between a purchaser and a seller in the area in which the Property is located.
(b) Notwithstanding anything contained in the foregoing provisions:
(i) At Closing, (A) Seller shall, at Seller’s option, either deliver to Purchaser any security deposits actually held by Seller pursuant to the Leases or credit to the account of Purchaser the amount of such security deposits (to the extent such security deposits are not applied against delinquent rents or otherwise as provided in the Leases), and (B) Purchaser shall credit to the account of Seller all refundable cash or other deposits posted with utility companies serving the Property, or, at Seller’s option, Seller shall be entitled to receive and retain such refundable cash and deposits. In the event any security deposits shall have been deposited with Seller in a form other than cash (e.g. letter of credit), Seller shall satisfy its obligations hereunder with respect to such security deposit by delivering to Purchaser an assignment of such security deposit to Purchaser with written instructions to the issuer of such deposits to transfer the same to Purchaser, and appropriate instruments of transfer or assignment.
(ii) Any taxes paid at or prior to Closing shall be prorated based upon the amounts actually paid. If taxes and assessments for the current year have not been paid before Closing, Seller shall be charged at Closing an amount equal to that portion of such taxes and assessments which relates to the period before Closing and Purchaser shall pay the taxes and assessments prior to their becoming delinquent. Any such apportionment made with respect to a tax year for which the tax rate or assessed valuation, or both, have not yet been fixed shall be based upon the tax rate and/or assessed valuation last fixed. To the extent that the actual taxes and assessments for the current year differ from the amount apportioned at Closing, the parties shall make all necessary adjustments by appropriate payments between themselves following Closing.
(iii) Charges referred to in Section 4.5(a) hereof which are payable by any tenant to a third party shall not be apportioned hereunder, and Purchaser shall accept title subject to any of such charges unpaid and Purchaser shall look solely to the tenant responsible therefor for the payment of the same.
Taxes and Prorations The real estate taxes, personal property taxes on any tangible personal property, bond payments assumed by the Buyer, interest, rents (based on actual collected rents), association dues, insurance premiums acceptable to Buyer, and operating expenses will be prorated through the day before Closing. If the amount of taxes for the current year cannot be ascertained, rates for the previous year will be used with due allowance being made for improvements and exemptions. Any tax proration based on an estimate will, at the request of either party, be readjusted upon receipt of the current year's tax xxxx; this provision will survive the Closing.
REAL ESTATE TAXES, SPECIAL ASSESSMENTS AND PRORATIONS (a) Because the Entire Property (of which the Property is a part) is subject to a triple net lease (as further set forth in paragraph 11(a)(i), the parties acknowledge that there shall be no need for a real estate tax proration. However, Seller represents that to the best of its knowledge, all real estate taxes and installments of special assessments due and payable in all years prior to the year of Closing have been paid in full. Unpaid real estate taxes and unpaid levied and pending special assessments existing on the date of Closing shall be the responsibility of Buyer and Seller in proportion to their respective Tenant in Common interests, pro-rated, however, to the date of closing for the period prior to closing, which shall be the responsibility of Seller if Tenant shall not pay the same. Seller and Buyer shall likewise pay all taxes due and payable in the year after Closing and any unpaid installments of special assessments payable therewith and thereafter, if such unpaid levied and pending special assessments and real estate taxes are not paid by any tenant of the Entire Property.
(b) All income and all operating expenses from the Entire Property shall be prorated between the parties and adjusted by them as of the date of Closing. Seller shall be entitled to all income earned and shall be responsible for all expenses incurred prior to the date of Closing, and Buyer shall be entitled to its proportionate share of all income earned and shall be responsible for its proportionate share of all operating expenses of the Entire Property incurred on and after the date of closing.
Apportionments The following apportionments shall be made between Seller and Purchaser as of 11:59 p.m. local time at the Property, on the day immediately preceding the Closing Date (the “Apportionment Date”).
(a) Amounts paid or payable under the Leases, under any new leases executed after the date of this Agreement pursuant to the provisions hereof and under all Operating Agreements. At the Closing, Seller shall either deliver to Purchaser any security deposits actually held by Seller pursuant to the Leases or credit to the account of Purchaser the amount of such security deposits (to the extent such security deposits are not applied against delinquent rentals or otherwise as provided in the Leases). Unpaid and delinquent rent under the Leases collected by Seller or Purchaser after the Closing Date shall be delivered as follows: (a) if Seller collects any unpaid or delinquent rent for the Property, Seller shall deliver to Purchaser any such rent relating to the date of Closing and any period thereafter within fifteen (15) days after the receipt thereof, and (b) if Purchaser collects any unpaid or delinquent rent from the Property, Purchaser shall deliver to Seller any such rent relating to the period prior to the date of Closing within fifteen (15) days after the receipt thereof. Seller and Purchaser agree that all rent received by Seller or Purchaser after the date of Closing shall be applied first to current rentals and then to delinquent rentals, if any, in inverse order of maturity. Purchaser will make a good faith effort after Closing to collect all rents in the usual course of Purchaser’s operation of the Property, but Purchaser will not be obligated to institute any lawsuit or other collection procedures to collect delinquent rents. With respect to percentage rents based upon gross sales or other income generated by the business of a tenant located on the Property during a specified period of time (the “Applicable Period”), Purchaser shall, upon collection of such percentage rent, remit to Seller an amount equal to the product obtained by multiplying the percentage rent so collected by a fraction, the numerator of which is the number of days which have elapsed in the Applicable Period prior to the date of Closing and the denominator of which is the total number of days in the Applicable Period. With respect to additional rent attributable to insurance, taxes, common area maintenance and other operating expenses which are passed through to tenants under the Lease (the “Pass Through Expenses”) which (i) have been billed by Seller to tenants prior to Closing but which have not been collected or (ii) which have not been billed to tenants by Seller prior to Closing and relate to periods prior to the Closing and for which Purchaser bills subsequent to closing (Purchaser hereby agreeing to so xxxx on Seller’s behalf), Purchaser shall in accordance with each such tenant’s lease and upon collection of same, remit to Seller an amount equal to that portion of Pass Through Expenses which accrued prior to Closing. If Seller has billed and collected Pass Through Expenses which relate to periods after the Closing or if Seller has collected and not expended monies for obligations as to Pass Through Expenses as to which Purchaser would be liable or would be obligated to refund to tenants, Seller shall credit the same to Purchaser at Closing. Any Pass Through Expenses collected by Purchaser after the Closing shall be applied as designated by the tenant and if the tenant does not designate, first to current Pass Through Expenses and then to delinquent Pass Through Expenses, if any, in the inverse order of maturity. Purchaser hereby assumes responsibility for the payment of any unpaid leasing commissions and tenant inducement costs with respect to any new Leases or Lease renewal or modification approved (or deemed approved) by Purchaser pursuant to Section 5.4(c) below from and after the Effective Date. Seller shall be responsible for payment of and shall credit Purchaser at Closing with any unpaid leasing commissions and tenant inducement costs with respect to the current terms of the Leases at the Property other than such approved new Leases or renewals or modifications.
(b) Rental under the Ground Lease and payments due into the Basin Management Fund (as defined in that certain Recreational Land Use Agreement dated June 10, 1985, by and between the United States acting through the Bureau of Reclamation and the City of Scottsdale, Arizona, as amended, and applied to the Hotel pursuant to the 3rd Amendment to the Ground Lease).
(c) Tour agents’ and travel agents’ commissions with respect to the Hotel.
(d) General real estate taxes, water or sewer rates and charges (if not metered), personal property taxes, or any other governmental tax or charge levied or assessed against the Property (collectively, the “Taxes”), relating to the Property and payable during the year in which Closing occurs. If the Closing shall occur before the actual Taxes payable during the year of Closing are known, the apportionment of Taxes shall be upon the basis of the latest available tax rates and assessed value of the Property, provided that, if the Taxes for the year of Closing are thereafter determined to be more or less than the Taxes for the preceding year (after any appeal of the assessed valuation thereof is concluded), Seller and Purchaser promptly (but no later than the date that is thirty (30) days from and after the date that the final invoices for taxes for the Property for the year in which the Closing occurs are issued by the applicable taxing authority, except in the case of an ongoing tax protest) shall adjust the proration of such Taxes, and Seller or Purchaser, as the case may be, shall pay to the other any amount required as a result of such adjustment. Further, if Seller or Purchaser undertakes a tax protest with respect to all or any portion of the Taxes for the year in which Closing occurs or Seller does so with respect to any previous year, any refund relating to any previous year shall be the property of Seller, and any refund relating to the year in which Closing occurs shall be prorated as of the Apportionment Date, subject in each case to payment of any of such refunds as are due to Tenants under the Leases. All Taxes assessed for periods after the date of Closing shall be paid by Purchaser.
(e) With respect to electricity, telephone, television, cable television, gas, water and sewer services that are metered and other utilities (collectively, the “Utilities”), Seller shall endeavor to have the respective companies providing the Utilities read the meters for the Utilities on or immediately prior to the Apportionment Date. Seller shall be responsible for all charges based on such final meter reading, and Purchaser shall be responsible for all charges thereafter. If such readings are not obtainable, then, until such time as readings are obtained, charges for all Utilities for which readings were not obtained shall be pro rated as of the Apportionment Date based upon the per diem rate obtained by using the last period and bills for such Utilities that are available. Upon the taking of a subsequent actual reading, such apportionment shall be adjusted to reflect the actual per diem rate for the billing period in which the date of Closing falls, and Seller or Purchaser, as the case may be, shall promptly deliver to the other the amount determined to be due upon such adjustment.
(f) Room charges, room service charges, valet, telephone and similar charges as to the Hotel for the night commencing on the Apportionment Date and ending on the morning of the date of Closing shall be apportioned fifty percent (50%) to Seller and fifty percent (50%) to Purchaser. Dinner and bar charges for the evening of the Apportionment Date shall be the property of Seller. Breakfast charges for the morning of the date of Closing shall be the property of Purchaser.
(g) Seller shall receive full reimbursement from Purchaser at Closing for each of the following items:
(i) prepaid fees or other charges for transferable licenses, advertising expenses (but only to the extent such expenses relate to advertising reasonably useable by Purchaser), permits, telephone equipment, telephone rental, or other items, if any, to the extent the rights to such prepaid fees or other charges are assigned by Seller to Purchaser at Closing; and
(ii) transferable deposits with companies providing Utilities, if any, to the extent the rights to such transferable deposits are assigned by Seller to Purchaser at Closing.
(h) Amounts prepaid or payable under any Operating Agreements.
(i) Such other items as are customarily provided and adjusted in the sale of a hotel (including, without limitation, promotional items and trade advertising due bills to the extent such expenses relate to advertising reasonably useable by Purchaser) shall be apportioned between Seller and Purchaser).
(j) The apportionments as to the Hotel in this Section 4.5 shall be prepared, to the extent applicable, in accordance with the current edition of the Uniform System of Accounts for Hotels of the Hotel Association of New York City, Inc., as adopted by the American Hotel Association of the United States and Canada.
