Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 2 contracts

Samples: Sale Agreement (Balcor Colonial Storage Income Fund 86), Sale Agreement (Balcor Colonial Storage Income Fund 86)

Prorations. ~~13.1~~The Purchase Price for the Property shall be subject to prorations and credits as follows to be determined as of 12:01 a.m. on the Closing Date: 1. Rents ~~(exclusive~~ Payable Under Tenant Leases. Any portion of ~~delinquent rents~~any rents collected subsequent to the Closing Date and properly allocable to periods prior to the Closing Date, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount net of 6% Purchaser's third-party costs of ~~prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability~~collection, if any, ~~for~~ shall be paid, promptly after receipt, to the Seller, but subject to all of the provisions of this Section; and any portion thereof properly allocable to periods subsequent to the Closing Date, if any, shall be paid to Purchaser. Any amount collected from a tenant shall first be applied to such ~~items); operating expenses~~ tenant's current monthly rental and then to past due amounts in the reverse order in which ~~are reimbursable~~ they were due. Any advance rental payments or deposits paid by ~~the~~ tenants ~~for the period~~ prior to the Closing Date ~~less~~ and applicable to the periods of time subsequent to the Closing Date and any ~~amount previously~~ security deposits or other amounts paid by tenants, together with any interest on both thereof to the ~~tenants~~ extent such interest is due to tenants, shall be credited to ~~Seller; and other similar items shall be adjusted ratably as of 11:59 p.m.~~ Purchaser on the Closing Date. No credit shall be given the Seller for accrued and unpaid rent or any other non-current sums due from tenants until said sums are paid. 2. Motel Room, Restaurant and Bar Revenues. Purchaser shall be entitled to all food service, bar, beverage and liquor revenues and charges and all revenues and charges from restaurant operations, Motel banquet and conference facility operations, and ~~credited~~ all other revenue of any kind attributable to any of the same for the period on and after 12:01 a.m. on the Closing Date. Purchaser shall pay over to Seller all collections of accounts receivable in connection with the Properties which have accrued as of Closing (the "Closing Accounts Receivable"). By no later than sixty (60) days after Closing, Purchaser shall pay to Seller an amount equal to the ~~balance of the cash due at Closing. Utilities~~remaining Closing Accounts Receivable, ~~including water, sewer, electric,~~ minus those uncollectible Closing Accounts Receivable as agreed upon by Purchaser and ~~gas shall be prorated at Closing based on the most recent ascertainable data~~Seller. Seller shall ~~pay at Closing the bills therefor for the period~~ deliver to ~~and including the Closing, and the~~ Purchaser ~~shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the~~ or provide Purchaser ~~shall receive~~ a credit against the Purchase Price for ~~Seller's portion and shall pay~~ the ~~entire utility bill~~ Properties in an amount equal to all guest reservation deposits held by the Motels for Motel guests arriving or staying after ~~Closing. If Seller hxx xre~~check-~~paid any such utilities (so long as no more than thirty (30) days in advance in~~ out time for the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address Motel on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All ~~costs associated with telephone directory listings and~~ collections of Motel receivables from any ~~other prepaid advertisements~~ party after Closing shall be ~~prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior~~ applied first to ~~the Closing Date and Purchaser shall be responsible for any costs associated therewith arising~~ receivables due from ~~and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes~~ such party which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have ~~the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period~~ accrued prior to Closing ~~unless the tenant has vacated the premises under the pertinent Lease before the Closing Date~~ and ~~said Lease is not assigned~~ second to ~~the Purchaser. Furthermore, the Seller shall not~~ receivables due from such party which have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period accrued after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 2 contracts

Samples: Purchase and Sale Agreement (Super 8 Motels LTD), Purchase and Sale Agreement (Super 8 Motels LTD)

Prorations. ~~13.1~~6.7.1. Real property taxes, personal property taxes, assessments, rents, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents ~~(exclusive~~ and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent ~~rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned~~ rents attributable to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period periods prior to the ~~Closing Date less any amount previously paid~~ Close of Escrow and which are collected by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Buyer or Seller shall be ~~reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned~~ retained by or paid to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that ~~such prorations~~ any amounts collected by Buyer or Seller shall be ~~deemed final and not subject~~ first applied to ~~further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing~~any rents then due to Buyer and, ~~at which time all prorations shall be deemed final and not subject~~ if collected by Seller, remitted to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive Buyer for such ~~delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller~~purpose. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to ~~use the existing logos~~pursue any Tenant for delinquent rent, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser but shall not ~~use the existing logos~~ (a) cause Tenant to be delinquent for their current rent or ~~trade name on stationery, business cards, contracts~~ become financially unstable or ~~other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.~~ (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to ~~place~~ seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a ~~listing and/or advertisement~~ copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year. 6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in ~~such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list~~ all events, to the ~~Purchaser's name and telephone number~~prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3. 6.7.3. Seller ~~may also place a listing and/or advertisement in such publication~~agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in ~~the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable~~ any way related to the ~~period after Closing~~Property. ~~(d) In the event~~ 6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third ~~party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising~~ parties and based on events occurring subsequent to the ~~Closing Date, then Purchaser shall be responsible to pay same subsequent~~ Close of Escrow and which are in any way related to the ~~Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)~~Property. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 2 contracts

Samples: Purchase and Sale Agreement (G Reit Inc), Purchase and Sale Agreement (G Reit Inc)

Prorations. ~~13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to~~ 15.1 Water and ~~assumed by Purchaser and credited to Purchaser at Closing)~~other utility charges; fuels; prepaid operating expenses~~; management fees in the amount of 6% of prorated rents credited to Purchaser~~; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' ~~liability~~liabilities, if any, for such items); operating expenses paid by Seller which are reimbursable by the tenants for the period prior to the Closing ~~Date~~ Date, less any amount previously paid by the ~~tenants shall be credited~~ tenants; unpaid operating expenses for the period prior to ~~Seller~~the Closing Date prorated on a "net" basis, as set forth above; and all other ~~similar~~ items of expense and income shall be adjusted ratably as of ~~11:59 p.m.~~ 12:01 a.m. on the Closing Date ("Proration Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business"), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be ~~reimbursed at Closing~~ entitled to a credit for ~~any~~ all transferable utility deposits ~~which~~ transferred hereunder, if any, and all other utility deposits, if any, may be withdrawn by and refunded to Seller and Purchaser shall make its own replacement deposits for utilities as may be required by the ~~Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing~~respective utilities involved. ~~Assessments~~ Assessments, excluding regular ad valorem real estate taxes, payable ~~in installments which are due subsequent to~~ in 15.2 All basic rent paid following the Closing Date ~~shall be paid~~ by ~~Purchaser. If the amount of~~ any tenant of the ~~items to be prorated~~ Property who is ~~not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations~~ indebted under ~~the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to~~ a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible Lease for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent basic rent ~~attributable to a tenant's occupancy of a portion of the Real Property~~ for any period prior to the ~~date~~ Proration Date in an amount greater than the amount of ~~Closing, free from any claim thereon~~ all current basic rent owed by ~~the Seller. Seller may use whatever lawful means are available~~ said tenant to ~~Seller to collect any delinquencies up to and~~ Purchaser shall be deemed a "Post-Closing Receipt" until the ~~day prior~~ earlier to occur of (i) one year after the Closing Date, ~~provided that~~ or (ii) such time as all such indebtedness is paid in full. Within ten (10) days following the end of each calendar month, Purchaser shall pay to Seller Post-Closing Receipts collected in the previous month. Purchaser shall use its reasonable, good faith efforts, at no additional cost or expense to Purchaser, to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 30 days after the one-year anniversary of the Closing Date, upon the written request of Seller, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first year after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not ~~agree~~ previously delivered to ~~reduce rents for~~ Seller in accordance with the terms hereof. Purchaser shall provide Seller with any ~~period~~ information reasonably necessary to verify the accuracy of ~~time after~~ the Post-Closing ~~in order~~ Receipts reconciliation statement and upon the verification of additional funds owing to ~~induce any tenants~~ Seller, Purchaser shall pay to ~~pay delinquent rents~~Seller said additional Post-Closing Receipts. Purchaser's obligations to attempt to collect Post- Closing Receipts shall expire one year from the Closing Date. Seller shall ~~not have~~ retain the right ~~subsequent~~ to ~~Closing~~ sue any tenant for rent owed to ~~seek (by legal action or otherwise) the collection of any rents delinquent~~ Xxxler for any period prior to ~~Closing unless~~ the ~~tenant has vacated the premises under the pertinent Lease before~~ Proration Date. This Paragraph 15.2 of this Agreement shall survive the Closing ~~Date~~ and ~~said Lease is not assigned to~~ the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as delivery and recording of the ~~Closing Date~~Deed. ~~13.3. To the extent it is reasonably possible for the~~ 15.3 Seller covenants to ~~do so~~operate, ~~the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license~~ maintain and ~~right to use the logos currently used by~~ manage the Property ~~which are~~ in the ~~property of an Affiliate~~ same manner that it has managed, maintained and operated the Property during the period of Seller's ownership, ~~in place advertising, telephone directory listings~~ subject to reasonable wear and ~~advertisements,~~ tear and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Sellercasualty. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 2 contracts

Samples: Sale Agreement (Balcor Equity Pension Investors Ii), Sale Agreement (Balcor Equity Pension Investors I)

Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior Notwithstanding anything to the ~~Closing Date less~~ contrary in any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for CAPCO Agreement: (a) The Parties agree that all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items normally prorated, including those listed below (but not including Income Taxes), relating to ~~be prorated is not then ascertainable,~~ the ~~adjustments thereof shall be on the basis~~ business and operation of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements DLC Nuclear Assets shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the DLC Nuclear Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing , with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, DLC liable to the extent ~~that Purchaser is able~~ such items relate to ~~collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for~~ any time period prior to the ~~date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the~~ DLC Nuclear Closing Date, ~~provided that Seller shall not agree~~ and the applicable Specified FE Subsidiary liable to ~~reduce rents for any period of time after Closing in order~~ the extent such items relate to ~~induce any tenants to pay delinquent rents. Seller shall not have~~ periods commencing with the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the DLC Nuclear Closing Date (measured in the same units used to compute the item in question, otherwise measured by calendar days): (i) Personal property, real estate and ~~said Lease is not assigned~~ occupancy Taxes, assessments and other charges, if any, on or with respect to the ~~Purchaser. Furthermore~~business and operation of the DLC Nuclear Assets; (ii) Rent, Taxes and all other items (including prepaid services or goods not included in Inventory) payable by or to a DLC under any of the ~~Seller shall not have the right to retain any portion of any security deposit held by Seller~~ DLC Nuclear Agreements; (~~if any~~iii) Any permit, license, registration, compliance assurance fees or other fees with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:Transferable Permit; (aiv) ~~The temporary license granted by this paragraph shall commence on the Closing Date~~ Sewer rents and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such periodcharges for water, ~~Purchaser shall have the right to use the existing logos~~telephone, ~~in place advertising, telephone directory listings~~ electricity and ~~advertisements, and telephone numbers,~~ other utilities with respect to ~~each~~ the DLC Nuclear Assets; (v) Rent and Taxes payable by DLC under the Real Property ~~without additional compensation~~ Leases assigned to the ~~Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use~~ applicable Specified FE Subsidiary; and (vi) ANI and XXXX insurance premiums for the ~~existing logos or trade name on stationery, business cards, contracts~~ current year or other ~~documents~~applicable policy period; (vii) Impositions and fees payable to the Department of Energy and the NRC; and (viii) Membership fees in respect of the Institute for Nuclear Power Operator, the Nuclear Energy Institute and ~~shall not use the existing trade name~~ similar organizations involved solely in ~~responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller~~nuclear matters. (b) ~~The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements~~ In connection with the ~~pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced~~ prorations referred to in ~~due course and within the license period specified~~ Section 3.4 (a) above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that ~~Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of~~ actual figures are not available at the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the DLC Nuclear Closing Date, ~~then Purchaser~~ the proration shall be ~~responsible to pay same subsequent~~ based upon the actual Taxes or other amounts accrued through the DLC Nuclear Closing Date or paid for the most recent year (or other appropriate period) for which actual Taxes or other amounts paid are available. Such prorated Taxes or other amounts shall be re-prorated and paid to the appropriate Party within sixty (60) days of the date that the previously unavailable actual figures become available. The prorations shall be based on the number of days in a year or other appropriate period (i) before the DLC Nuclear Closing Date and (~~but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e~~ii) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for including and ~~shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day~~ after the ~~permitted date set forth above for~~ DLC Nuclear Closing Date. The Parties agree to furnish each ~~Property for which Purchaser continues~~ other with such documents and other records as may be reasonably requested in order to ~~use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days~~confirm all adjustment and proration calculations made pursuant to this Section 3.4. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 2 contracts

Samples: Nuclear Generation Conveyance Agreement (Dqe Inc), Nuclear Generation Conveyance Agreement (Duquesne Light Co)

Prorations. ~~13.1~~3.2.1. ~~Rents~~ The following shall be apportioned with respect to the Property as of the end of the Transition Period (~~exclusive~~ as defined in Section 6.1.1), as if Purchaser were vested with title to the Property as of ~~delinquent~~ the end of the Transition Period. (a) rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, 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); (b) taxes (including personal property taxes on the Personal Property) and assessments levied against the Property; (c) payments under the Contracts; (d) gas, electricity and other utility charges for which Seller is liable, if any, such ~~items)~~charges to be apportioned at Closing on the basis of the most recent meter reading occurring prior to Closing; and (e) any other accrued or prepaid operating expenses ~~which are reimbursable by the tenants~~ for the ~~period prior~~ Property and, to the ~~Closing Date less~~ extent customarily prorated between a purchaser and a seller in the Commonwealth of Massachusetts, any other items pertaining to the Property. 3.2.2. Notwithstanding anything contained in the foregoing provisions: (a) At Closing, Seller shall deliver to Purchaser any security deposits and prepaid rents (for periods on or after the end of the Transition Period) under the Leases or credit to the account of Purchaser the unapplied amount ~~previously paid by~~ of such security deposits and prepaid rents. All prepaid rents covering the ~~tenants~~ period of time commencing on or after the end of the Transition Period shall be ~~credited~~ delivered by Seller to ~~Seller; and other similar items shall be adjusted ratably as of 11:59 p.m.~~ Purchaser on the Closing Date, ~~and credited~~ or Purchaser may elect to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price ~~for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days~~ in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other such prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) ~~The Seller stipulates that there is full~~ Any taxes paid at or prior to Closing shall be prorated based upon the amounts actually paid. If taxes and ~~adequate consideration~~ assessments for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but current year have not been paid before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisementClosing, Seller shall be ~~entitled~~ charged at Closing an amount equal to ~~a pro-rata credit for such~~ that portion of ~~the cost of~~ such ~~listing and/or advertisement attributable~~ taxes and assessments which relates to the period ~~after Closing. (d) In~~ before the ~~event any third party (such as telephone company or billboard company) makes a separate charge for~~ end of the ~~use of such listings or advertising subsequent to the Closing Date, then~~ Transition Period and Purchaser shall ~~be responsible~~ pay the taxes and assessments prior to ~~pay same subsequent~~ their becoming delinquent. Any such apportionment made with respect to a tax year for which the ~~Closing Date (but no such payment shall accrue to the benefit of the Seller~~ tax rate or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth aboveassessed valuation, ~~then Purchaser~~ or both, have not yet been fixed shall be ~~liable for~~ based upon the most recent ascertainable, and shall ~~pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00)~~ be re-prorated post-Closing once final taxes and assessments for ~~each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall~~ such ~~extended license~~ period ~~exceed ninety (90) additional days~~have been determined. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 2 contracts

Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Global Partners Lp)

Prorations. ~~13.1~~12.1. ~~Rents~~ The following items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited against the balance of the cash due at Closing: i) rents (exclusive of delinquent rents, but including prepaid rents); ~~prepaid associations dues,~~ ii) refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); iii) water and other utility charges; iv) fuels; v) prepaid operating expenses; ~~management fees in the amount of 6% of prorated rents credited to Purchaser;~~ vi) real and personal property taxes and assessments ("Taxes") prorated on a "net" basis based on 105% of the most recent actual tax bills. The amount of the proration shall be calculated by (~~i.e. adjusted~~ 1) determining the net amount (the "Net Amount") of (x) the amount of all Taxes accrued but not yet due and payable as of the Closing (based on the most recent actual bills), minus (y) the aggregate amount payable by tenants of the Property for ~~all tenants' liability~~their respective shares of Taxes for the time period covered by the proration; (2) multiplying the Net Amount by 105%. In addition, ~~if any~~Seller shall give Purchaser a credit for the aggregate amount actually paid or deposited by tenants of the Property, as of the Closing, for ~~such items)~~their respective shares of Taxes for the time period covered by the proration; vii) operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the ~~tenants~~ Tenants shall be credited to Seller; and viii) other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closingitems. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. ~~The~~ All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below. 12.2. All monies received after Closing by Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion from any tenant of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible Property who is indebted under a lease for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent ~~attributable to a tenant's occupancy of a portion of the Real Property~~ for any period prior to ~~the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to~~ and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before including the Closing Date will first be applied to rent or other charges currently due to Purchaser under the applicable lease. Any balance remaining after the application of such monies to current rent and ~~said Lease is not assigned~~ other charges shall be deemed a "Post-Closing Receipt" but only to the ~~Purchaser~~extent such pre-closing indebtedness has not been paid in full. ~~Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller~~ Within ten (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (18010) days ~~subsequent to the date when the public telephone directory pertaining to~~ following each ~~Property is published subsequent to the~~ receipt by Purchaser of a Post-Closing ~~Date. During such period~~Receipt, Purchaser shall ~~have the right~~ pay such Post-Closing Receipt to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinSeller. Purchaser shall ~~not use the existing logos or trade name~~ set forth both current and delinquent rent amounts on ~~stationery~~tenant bills in an effort to collect all amounts owing from tenants, ~~business cards~~including those which, ~~contracts or other documents~~upon collection, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovewould constitute Post-Closing Receipts hereunder. ~~In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs~~ Within 120 days after ~~the date hereof but before~~ the Closing Date, Purchaser shall ~~have~~ deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to ~~place a listing and/or advertisement in such publication~~ conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's ~~sole cost~~ books and ~~expense. Such listing and/or advertisement may list~~ records to verify the ~~Purchaser's name~~ accuracy of the Post-Closing Receipts reconciliation statement and ~~telephone number.~~ upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller ~~may also place a listing and/or advertisement in such publication,~~ said additional Post-Closing Receipts and ~~in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of~~ the cost of ~~such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use~~ performing Seller's audit. Paragraph 12.2 of ~~such listings or advertising subsequent to~~ this Agreement shall survive the Closing ~~Date, then Purchaser shall be responsible to pay same subsequent to~~ and the ~~Closing Date (but no such payment shall accrue to the benefit~~ delivery and recording of the ~~Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)~~deed. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 2 contracts

Samples: Agreement of Sale (Balcor Pension Investors Vi), Agreement of Sale (Balcor Pension Investors Vi)

Prorations. ~~13.1. Rents (exclusive~~ The following items relating to the Assets and the ownership and operation of ~~delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which~~ the Generating Assets will be ~~assigned to and assumed by Purchaser and credited to Purchaser at~~ allocated pro rata per diem for the tax year that includes the date of Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, ~~if any,~~ with Seller liable for such ~~items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar~~ items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent ~~that Purchaser is able~~ they are allocable to ~~collect said delinquencies,~~ the ~~Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any~~ period prior to the date of ~~Closing, free from any claim thereon by~~ the ~~Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to~~ Closing and ~~until the day prior~~ Purchaser liable for such items to the ~~Closing Date, provided that Seller shall not agree~~ extent they are allocable to ~~reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right~~ periods beginning with and subsequent to ~~Closing to seek (by legal action or otherwise)~~ the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) ~~The temporary license granted by this paragraph shall commence~~ Property Taxes on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, or with respect to ~~each Property without additional compensation to~~ the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the SellerAssets. (b) ~~The~~ Rents, additional rents, Taxes, to the extent normally adjusted in connection with similar transactions, and other items payable by Seller ~~stipulates that there is full~~ under the Real Property Leases and ~~adequate consideration for~~ the ~~license herein granted~~Business Contracts. (c) ~~Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings~~ The amount of rents, Taxes and ~~advertisements~~ charges for sewer, water, telephone, electricity and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable other utilities relating to the ~~period after Closing~~Real Property and the real property subject to the Real Property Leases. (d) In All other items (excluding other Taxes) normally adjusted in connection with similar transactions. Except as otherwise agreed by the ~~event any third party (~~parties, the net amount of all such prorations will be settled and paid as ~~telephone company or billboard company) makes a separate charge for the use~~ of ~~such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit~~ date of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth aboveClosing. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed At least ninety (90) ~~additional days. (f) If Purchaser continues~~ days prior to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws date of the ~~state where~~ Closing, Seller will provide Purchaser with a reasonably detailed schedule showing a calculation of the estimated prorations as if the Closing were occurring on such ~~Property~~ date. If the Closing shall occur before a real estate Tax rate is ~~located~~ fixed, the apportionment of Taxes shall be based upon the Tax rate for the preceding year applied to ~~prevent~~ the latest assessed valuation and such ~~unauthorized use~~ Taxes shall be reprorated upon the request of Seller, on the one hand, or Purchaser, on the other hand, made within sixty (60) days after the date that the actual amounts become available. Seller and Purchaser agree to ~~recover~~ furnish each other with such documents and other records as may be reasonably requested in order to confirm all adjustment and proration calculations made pursuant to this Section 1.06. To the extent required by any ~~damages authorized by~~ approval of the transfer of the FERC project licenses related to the Hydro Units, Seller agrees to pay all annual charges accrued under such ~~laws~~licenses as of the Closing.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Pp&l Resources Inc), Asset Purchase Agreement (Pp&l Inc)

Prorations. ~~13.1. Rents~~ The following items shall be adjusted and apportioned between Sellers and Purchaser as follows: (~~exclusive of~~ a) All non-delinquent ~~rents~~ad valorem real estate and personal property taxes, ~~but including prepaid rents); prepaid associations dues, refundable security deposits (which will~~ charges and assessments affecting the Properties shall be ~~assigned to and assumed by Purchaser and credited~~ prorated on a per diem basis such that they are charged to Purchaser ~~at Closing); fuels; prepaid operating expenses; management fees in~~ as of the ~~amount~~ Closing Date, disregarding any discount or penalty and on the basis of 6% the fiscal year of ~~prorated rents credited to Purchaser;~~ the authority levying the same. If any of the same have not been finally assessed as of the Closing Date for the current fiscal year of the taxing authority, then the same shall be adjusted through the Closing Date based upon one hundred percent (100%) of the most recently ascertainable taxes. There shall be a final reproration of the estimated real estate and personal property taxes promptly following the issuance of final bills. Each party agrees to make such payments as shall be necessary to provide the appropriate credits resulting from such re-proration. (b) All non-delinquent rent and other income of the Properties, including, without limitation, other periodic rentals, additional rentals, escalation rentals, pass-throughs and other sums and charges payable under the Leases (collectively, "Rents") collected as of the Closing Date shall be prorated on a ~~"net"~~ per diem basis ~~(i.e. adjusted for all tenants' liability, if any, for~~ such ~~items); operating expenses which~~ that they are ~~reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be~~ credited to ~~Seller; and other similar items shall be adjusted ratably~~ Purchaser as of ~~11:59 p.m. on~~ the Closing Date~~, and credited to the balance of the cash due at Closing~~. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit ~~against~~ for any Rents which have been prepaid as of the ~~Purchase Price~~ Closing Date. No later than five (5) days prior to the Closing Date, Sellers shall provide Purchaser with a statement of all delinquent Rents. Any Rents defined below, which are delinquent on the Closing Date and which are collected after the Closing (net of collection costs, if any) shall be applied as follows: (i) first to the month in which Closing occurred, (iii) second, to all periods after Closing until Rent due to Purchaser is paid current by the applicable Tenant, and (iii) third, to the receivables for ~~Seller's portion and shall pay~~ the ~~entire utility bill after~~ two calendar months immediately preceding the month of Closing. ~~If Seller hxx xre-paid any~~ From and after the Closing Date Purchaser shall use commercially reasonable efforts to collect such ~~utilities (so long as no more than thirty (30) days in advance~~ Rent receivables in the ordinary course of business, but shall not be obligated to engage a collection agency, take legal action or to send any default notices. The obligation of Purchaser to remit delinquencies to Sellers in accordance with the terms of this Section 6(b) shall survive the Closing, delinquent Rents which are not collected by Purchaser on or before the date that is sixty (60) days after Closing shall be forfeited by Sellers and Sellers shall have no further right, title or interest in or to the same. To the extent any Seller receives any Rents after Closing, the same shall be held in trust for Purchaser and be applied in accordance with the terms of this Section 6(b)~~, then~~ . (c) At Closing Purchaser shall receive a credit equal to the unapplied total of all security and other refundable tenant deposits then held by Sellers. One or more of the Sellers may participate in a program administered by Lease Term Insurance Group, LLC ("Lease Term Insurance") whereby tenants of a Property may pay a non-refundable fee in lieu of refundable security deposits. Such fees shall not be ~~charged its portion of such payment~~ treated as security deposits and shall not be subject to proration, provided that, at Closing~~. No proration~~ , Sellers shall credit the Purchase Price for an amount equal to the then balance of the Lease Term Insurance credit pool for each of the Properties. (d) Charges of water, electricity, sewer rental, gas, telephone and all other utilities, and charges and income under all Assumed Contracts shall be ~~made for utility expenses~~ prorated on a per diem basis such that they are ~~separately metered~~ credited or charged to ~~and paid directly by tenants and for which Seller has no obligation to pay. Furthermore~~Purchaser, ~~the Purchaser and the Seller may accomplish the transfer~~ as applicable, as of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing ~~Date shall be paid by Purchaser. If the amount of~~ Date, disregarding any ~~of the items to be prorated is not then ascertainable, the adjustments thereof shall be~~ discount or penalty and on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees fiscal year or ~~commissions payable to said consultants (if any) shall be treated as a portion~~ billing period of the ~~real estate tax liability~~ authority, utility or other person levying or charging for the same and charged to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible Sellers for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day periods prior to the Closing Date~~, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents~~. ~~Seller shall not have~~ If the ~~right subsequent to Closing to seek (by legal action or otherwise) the collection~~ consumption of any ~~rents delinquent for any period~~ of the foregoing is measured by meters, then Sellers shall use commercially reasonable efforts to arrange to obtain a reading of each such meter prior to Closing ~~unless~~ and Sellers shall pay all charges thereunder through the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion date of any ~~security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent~~ meter readings obtained prior to Closing~~, even though the tenant is delinquent in paying rent~~ . If actual amounts cannot be reasonably obtained as of the ~~Closing Date. 13.3. To~~ Closing, such charges and income under the ~~extent it is reasonably possible for the Seller to do so, the Seller~~ Assumed Contracts shall ~~grant~~ be based on Sellers' and Purchaser's good faith estimates (~~or shall arrange for the owner thereof to grant~~based on past expenses) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall ~~expire on the day which is~~ be re-prorated when actual amounts can be ascertained but in any event no later than one hundred eighty (180) days ~~subsequent~~ after Closing. Payments in connection with the final adjustment shall be due within thirty (30) days of written notice (e) Water or utility charges which are separately metered and billed to tenants at the ~~date when the public telephone directory pertaining to each Property is published subsequent to~~ Properties shall be reasonably estimated as of the Closing ~~Date. During~~ Date by Sellers based on the average consumption for such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration tenants for the ~~license herein granted.~~ two (c2) ~~Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings~~ previous monthly bills and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Dateat Closing, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller Sellers shall be entitled to a ~~pro~~credit equal to such estimate. Such estimate shall be subject to re-~~rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing~~proration under subsection (d) above. (df) In At Closing, Purchaser shall receive a credit for any Vacant Units (as defined below) that are not in Rent Ready Condition (as defined below) as of the ~~event any~~ date that is three (3) Business Days prior to the Closing Date in an amount equal to Seven Hundred Fifty Dollars ($750) for each such unit. "Rent Ready Condition" shall mean a Vacant Unit that has been thoroughly cleaned and repainted since being vacated and contains the following: (1) a refrigerator-freezer unit in good condition and working order; (2) a dishwasher, garbage disposal, stove, oven, and microwave in good condition and working order; (3) plumbing, heating, air conditioning, and electrical systems in good condition and working order; (4) floors fully covered with a combination of tile, linoleum or carpet, and that since the unit was vacated (a) all tile and linoleum has been replaced and/or thoroughly cleaned consistent with Seller's prior practices for vacant units to be re-leased and (b) all carpeting has been replaced or steam cleaned by a professional third party vendor; and (5) blinds and/or drapes on all windows in good condition and working order. "Vacant Unit" shall mean any residential apartment unit at the Properties that is unoccupied as of the Closing Date and that was vacated by the tenant most recently occupying such ~~as telephone company or billboard company~~unit at least three (3) ~~makes~~ Business Days prior to the Closing Date (i.e., if a ~~separate charge for the use of such listings or advertising subsequent~~ unit becomes vacant less than three (3) Business Days prior to the Closing Date, ~~then~~ it is not a "Vacant Unit" as to which Purchaser might be eligible to receive a credit). If requested by Purchaser, representatives of Sellers and Purchaser shall ~~be responsible to pay same subsequent~~ conduct a walk-through (the "Walk-Through") of the Properties on or around the third (3rd) Business Day prior to the Closing Date ~~(but no~~ in order to determine the amount of such ~~payment shall accrue~~ credit, if any, to ~~the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller~~ be given to ~~said third party)~~Purchaser. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 2 contracts

Samples: Real Estate Purchase and Sale Agreement (Ares Real Estate Income Trust Inc.), Real Estate Purchase and Sale Agreement (Ares Real Estate Income Trust Inc.)

Prorations. ~~13.1~~12.1. Rents (exclusive of delinquent rents, but including prepaid rents); ~~prepaid associations dues,~~ refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses~~; management fees in the amount of 6% of prorated rents credited to Purchaser~~; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the ~~tenants~~ Tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to against the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the day before the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. ~~The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect~~ All prorations will be final except as to the ~~Properties, i.e., those agreements which Seller has entered into with firms who are entitled~~ matters referred to ~~a commission based on services rendered and~~ in Paragraph 12.2 below. If the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall ~~be responsible~~ have collected from tenants any payments for ~~any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described~~ utilities, taxes, common area expenses, or other operating expenses in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions excess of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property amounts incurred by Seller for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall ~~be responsible to pay same subsequent~~ receive a credit for such excess amounts. If Seller is credited for any utilities, taxes, common area expenses, or other operating expenses in excess of amounts incurred by Seller for any period prior to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth aboveDate, then Purchaser shall receive a credit for such excess amounts. If Seller is credited for any utilities, taxes, insurance, CAM or other expenses which Seller has paid applicable to the period prior to the proration date and which are reimbursable by tenants after the Closing, the amount of the credit shall be ~~liable~~ held in escrow by the Title Company and shall be released to Seller when payment is made by the tenant. 12.2. All basic rent paid following the Closing Date by any tenant of the Property who is indebted under a lease for basic rent for any period prior to and including the Closing Date shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and the ~~owner~~ cost of ~~said rights a license fee equal to One Hundred Dollars ($100.00) for each day after~~ performing Seller's audit. Paragraph 12.2 of this Agreement shall survive the ~~permitted date set forth above for each Property for which Purchaser continues to use~~ Closing and the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal delivery and ~~equitable remedies authorized by federal law or the laws~~ recording of the ~~state where~~ deed. If, following the Closing, Seller receives any rebates or refunds of utility charges, insurance, real or personal property taxes or operating expenses, the amount of such ~~Property is located~~ rebate or refund shall be paid to ~~prevent~~ Purchaser, and Purchaser shall indemnify, defend and hold harmless the Seller against the claims of Tenants with respect to such ~~unauthorized use or to recover any damages authorized by such laws~~funds. The provisions of this paragraph shall be confirmed at and shall survive Closing.

Appears in 2 contracts

Samples: Sale Agreement (Balcor Equity Pension Investors Iii), Agreement of Sale (Balcor Equity Pension Investors Ii)

Prorations. ~~13.1. Rents~~ The following adjustments to the Purchase Price shall be made between Seller and Purchaser: (~~exclusive of delinquent rents~~a) The following items, ~~but including prepaid rents); prepaid associations dues~~as applicable, ~~refundable security deposits (which will~~ shall be ~~assigned to and assumed by~~ prorated between Purchaser and ~~credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated~~ Seller on a ~~"net"~~ per diem basis as of the Closing Date: (~~i.e. adjusted for~~ i) all ~~tenants' liability~~nondelinquent real estate taxes, installments of general and special assessments, homeowner's association dues, if any, and fire protection service charges, if any, due and payable in the calendar year in which Closing occurs, based upon the most recent information available to Seller. If Closing shall occur before the tax rate or assessment for the current year is fixed, the initial proration of such taxes or assessments shall be based upon the latest available information. Thereafter, when the actual tax rate for such ~~items); operating expenses which are reimbursable by~~ current year becomes known, Seller and Purchaser shall, outside of escrow and after Closing, re-prorate any such taxes or assessments to the ~~tenants~~ extent that the actual rate thereof was different than the rate used for prorations made at Closing and shall pay, one to the other, any adjustment due as a result of such re-proration; (ii) current rents for the ~~period prior to~~ month in which the Closing ~~Date less any amount previously paid by the tenants shall be credited to Seller;~~ occurs as actually paid, advance rentals, nonrefundable deposits and other ~~similar items shall be adjusted ratably as of 11:59 p.m. on~~ charges, if any, payable by Tenants under the ~~Closing Date~~Leases; and (iii) all charges for fuel, ~~and credited to the balance of the cash due at Closing. Utilities, including~~ water, sewer, ~~electric~~electricity and other utility services furnished to the Property which are not metered to Tenants. Seller, ~~and gas~~ to the extent the same is obtainable, shall ~~be prorated at Closing based~~ furnish meter readings for such utilities through the close of business on the ~~most recent ascertainable data. Seller shall pay at Closing~~ day prior to the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If ~~Seller hxx xre-paid~~ any such ~~utilities (~~meter readings are not so ~~long~~ obtainable, then Seller shall provide meter readings as no of a date not more than thirty (30) days ~~in advance in~~ prior to the ~~ordinary course~~ Closing Date, and the proration of ~~business)~~utility charges shall initially be based upon such prior reading. Upon the taking of actual meter readings first after Closing, ~~then Purchaser shall be charged its portion of~~ such ~~payment at Closing. No~~ proration shall be ~~made for utility expenses that are separately metered to~~ readjusted outside of escrow after Closing and ~~paid directly by tenants and for which~~ Seller ~~has no obligation to pay. Furthermore~~or Purchaser, as the ~~Purchaser and the Seller~~ case may ~~accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts~~ be, shall promptly pay to the ~~Purchaser's address, if~~ other the amount determined to be so due upon such ~~a procedure is possible~~ readjustment. (b) All other items of accrued or prepaid income and ~~convenient and mutually acceptable to Purchaser and Seller. Seller~~ expense shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to prorated as of the Closing ~~Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable~~Date, ~~the adjustments thereof shall be~~ on the basis of the most recent ascertainable ~~data~~amounts of or other reliable information for each item of income and expense. ~~The~~ Seller and Purchaser shall ~~assume Seller's obligations under~~ duly cooperate with each other and the ~~Seller's existing real estate tax consulting agreements with respect~~ Title Company in making prorations, adjustments and credits pursuant to this Section 10 and shall, as requested by the Title Company, furnish to the ~~Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction~~ Title Company such information as is in the ~~real estate taxes otherwise payable~~ possession of or obtainable by them to assist in making such prorations, adjustments or credits. In the event, for any reason beyond the reasonable control of the parties hereto, information necessary to calculate any proration, adjustment or credit for any item required to be prorated, adjusted or credited under this Section 10 is not available prior to Closing, then such items shall be prorated, adjusted or credited outside of escrow after Closing as soon as such information is available, and Seller and Purchaser shall duly cooperate with ~~respect~~ each other in regard thereto and shall pay, one to the ~~Properties~~other, any amounts which may be owing as a result of any such subsequent proration, adjustment or credit. ~~The fees or commissions payable to said consultants~~ In the event, at any time within six (~~if any~~6) months after Closing, errors shall be ~~treated~~ discovered in any prorations, adjustments or credits made pursuant to this Section 10, Seller and Purchaser shall correct such errors and shall pay, one to the other, any sums owning as a ~~portion~~ result of ~~the real estate tax liability to be pro-rated as~~ such correction. (c) For purposes of ~~the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that~~ all prorations provided for in this Agreement, Seller shall be responsible for ~~any costs associated therewith prior~~ all days up to the Closing ~~Date~~ Date, and Purchaser shall be responsible for ~~any costs associated therewith arising from~~ all days including and after the Closing Date. ~~All prorations described~~ Except as otherwise expressly provided in this ~~Agreement (except~~ Agreement, all prorations ~~for real and personal property taxes which~~ shall be ~~deemed final~~ final. (d) Security deposits, including cleaning and pet deposits, and prepaid rent and any interest thereon, in the amounts set forth in the Leases (or if not set forth therein, as ~~prorated~~ set forth on the Rent Roll) shall be credited to Purchaser at Closing. (e) If on the Closing ~~Date)~~ Date any Tenant is delinquent in the payment of rent, including any additional rent billed but unpaid at the time of Closing, the delinquent rent attributable to the period prior to the Closing shall remain the property of Seller and be paid to Seller if, as and when collected by Purchaser out of the funds received by Purchaser from such Tenant, and no proration of such delinquent rent shall be ~~subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors~~ made at ~~the Closing with respect~~ Closing. For a period of one hundred eighty (180) days after Closing, Purchaser shall use reasonable efforts to attempt to collect and shall remit to Seller any such ~~prorations~~delinquent rents owing to Seller; provided, however, that ~~such prorations~~ (i) Purchaser shall be ~~deemed final~~ required only to periodically send bills to the Tenant(s) owing such delinquent rent and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be ~~prorated. Instead,~~ required to commence any litigation or undertake any other collection efforts in regard thereto; and (ii) in the ~~extent that~~ event Purchaser ~~is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent~~ collects rent ~~attributable to~~ from a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents person who owes rent for any period of time after Closing ~~in order~~ and for a period of time prior to ~~induce any tenants~~ Closing, all amounts collected from such person shall be applied first to ~~pay delinquent rents.~~ the amount of rents owing by such person for the period of time after Closing and retained by Purchaser and only the excess, if any, shall be remitted to Seller. (f) Contemporaneously with the Closing, Seller shall ~~not have~~ deliver to Purchaser at the ~~right subsequent~~ offices of Seller's property manager all originals (including computer discs and tapes) of books and records of accounts, contracts, leases, leasing correspondence, receipts for deposits, bills and other papers that pertain to ~~Closing to seek (by legal action or otherwise)~~ the ~~collection~~ Property, together with all advertising materials, booklets, keys and other items, if any, used in the Property's operation, provided that Seller, at Seller's cost, may retain a copy of ~~any rents delinquent~~ the foregoing items for ~~any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before~~ tax reporting purposes. After the Closing ~~Date~~ and ~~said Lease is not assigned~~ solely for the purposes of Section 10, Seller, upon at least five (5) days' prior written request to ~~the~~ Purchaser~~. Furthermore~~, ~~the Seller~~ shall ~~not~~ have the right to ~~retain~~ inspect the books and records for the Property located at the office of Purchaser and/or Purchaser's property manager to verify that Purchaser is remitting to Seller the proper amounts according to this Agreement and for any ~~portion~~ other purpose related to Seller's prior ownership of the Property. (g) The cost of any ~~security deposit held~~ tenant improvements paid or incurred by Seller ~~(if any) with respect~~ for Leases approved by Purchaser and executed after the date of this Agreement shall be paid in full by Seller at or before Closing. Seller shall supply to ~~any Lease which will remain effective subsequent~~ Purchaser and Title Company paid invoices and final lien waivers for all such tenant improvement work to ~~Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To~~ the extent ~~it is reasonably possible for the Seller to do so, the Seller shall grant (~~performed on or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent prior to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation Any provision of this Agreement to the ~~Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery~~contrary notwithstanding, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the ~~date hereof but before the Closing~~ Effective Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall not undertake any tenant improvement work on any Unit without the prior written consent of Purchaser, such consent not to be ~~entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing~~unreasonably withheld, conditioned or delayed. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 2 contracts

Samples: Purchase and Sale Agreement (Development Partners), Purchase and Sale Agreement (Development Partners Ii)

Prorations. ~~13.1. Rents (exclusive of delinquent rents~~15.1 Rent, ~~but including prepaid rents); prepaid associations dues~~additional rent, ~~refundable security deposits (which will be assigned to~~ water and ~~assumed by Purchaser and credited to Purchaser at Closing)~~other utility charges; fuels; ~~prepaid~~ operating expenses~~; management fees in the amount of 6% of prorated rents credited to Purchaser~~; real and personal property taxes ~~prorated on a "net" basis~~ (~~i.e.~~ adjusted for all tenants' ~~liability~~liabilities, if any, for such items); ~~operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller;~~ and all other ~~similar~~ items of expense and income shall be adjusted ratably as of ~~11:59 p.m.~~ 12:01 a.m. on the Closing Date ("Proration Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business"), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be ~~reimbursed at Closing~~ entitled to a credit for ~~any~~ all transferable utility deposits transferred hereunder, if any, and all other utility deposits, if any, may be withdrawn by and refunded to Seller and Purchaser shall make its own replacement deposits for utilities as may be required by the respective utilities involved. Assessments, excluding regular ad valorem real estate taxes, payable in installments which ~~the Seller has deposited with any utility company and which will be assigned~~ are due prior to the ~~Purchaser at Closing~~Closing Date shall be paid by Seller. ~~Assessments~~ Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. ~~The Purchaser shall assume Seller's obligations under the Seller's existing~~ If any ongoing real estate tax ~~consulting agreements with respect to the Properties, i.e., those agreements which Seller~~ contest has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated not been finalized as of the Closing Date, Purchaser and Seller agree that the tax bill existing prior to the contexx xhall be the most recent data for the tax year being contested, and (i) Purchaser agrees to re-prorate such amount as it relates to the real estate tax proration for the current tax year to the extent such tax contest is successful. All ~~costs associated~~ other prorations will be adjusted finally pursuant to Paragraph 15.4 below. Purchaser shall be credited with ~~telephone directory listings~~ and Seller shall be charged with an amount equal to the sum of (i) all Tenant security deposits and interest thereon required under the Leases, and (ii) the amount of any other ~~prepaid advertisements shall be prorated~~ credits due to Tenants as of the Closing Date ~~so that~~ in accordance with the terms of the Leases, including prepaid rent. Seller shall be ~~responsible~~ entitled to retain all Tenant security deposits, interest thereon, or other such credits due Tenants for which Purchaser receives credit and Seller is charged pursuant to this Paragraph. At the Closing, Seller shall give Purchaser credit for an amount, determined on an accrual basis, equal to the abatement of rent for any ~~costs associated therewith prior to~~ period on and after the Closing Date ~~and~~ to which Tenants are entitled under Leases in effect on the Closing Date. Subject to the other terms of this Agreement, Purchaser shall ~~be responsible for any costs associated therewith arising~~ assume the performance of all terms, covenants and conditions of the Leases with respect to the period from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 2 contracts

Samples: Agreement of Sale (Balcor Equity Pension Investors Iii), Agreement of Sale (Balcor Equity Pension Investors Ii)

Prorations. ~~13.1. Rents~~ Escrow Holder will prorate between the parties, in Cash, to the Close of Escrow, an amount calculated by multiplying the Total Sales Percentage by each of the following: (~~exclusive of delinquent rents~~a) 2012 state, ~~but including prepaid rents); prepaid associations dues~~County, ~~refundable security deposits~~ city and special district (~~which will be assigned~~ if any) real property taxes, special taxes and assessments for the Project based on the latest information available to ~~and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees~~ Escrow Holder (i.e., $4,205,805 real property taxes for the 2012 tax year calculated using the total assessed value provided in the ~~amount of 6% of prorated rents credited~~ 2012 First Pass Assessment (i.e., $25,953,750) and the effective tax rate for 2011), (b) rental payments, other revenues and expenses and (c) any other items Seller and Buyer mutually instruct Escrow Holder to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prorate prior to the ~~Closing Date less any amount previously paid by the tenants shall be credited to Seller;~~ Close of Escrow. All rental payments and other ~~similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date,~~ tenant charges and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive additional rents received by Buyer from a ~~credit against the Purchase Price for Seller's portion and shall pay the entire utility bill~~ tenant after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be ~~paid by Purchaser~~applied first to collection costs and then to the most recently accrued obligation of such tenant. ~~If the amount of any of the items~~ After application as set forth above, Buyer shall remit to ~~be prorated is not then ascertainable, the adjustments thereof shall be~~ Seller on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants Final Adjustment Date (~~if any~~as defined below) ~~shall be treated as a~~ that portion of ~~the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings~~ rentals and ~~any~~ other ~~prepaid advertisements shall be prorated as of~~ tenant charges and additional rents received after the Closing Date ~~so that Seller shall be responsible for any costs associated therewith~~ attributable to periods prior to the ~~Closing Date~~ month of Closing, and ~~Purchaser shall be responsible for any costs associated therewith arising from and after~~ if attributable to the ~~Closing Date. All prorations described~~ month of Closing, Seller’s share thereof in ~~this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on~~ accordance with the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorationsproration set forth above; provided, however, that ~~such prorations~~ any rent received from the United States of America, the Department of Homeland Security and Department of Justice, and Internal Revenue Service Department of Treasury, Bureau of Alcohol, Tobacco and Firearms shall be deemed ~~final and~~ to be payment for the prior month’s outstanding rent due. In the event any prorations made under this Agreement shall prove to be incorrect for any reason, then any party shall be entitled to an adjustment to correct the same. Any item which cannot ~~subject to further post-closing adjustments at 5:00 PM Chicago time~~ be finally prorated because of the unavailability of information shall be tentatively prorated on the ~~day which~~ basis of the best data then available and re-prorated when the information is available. If any items to be adjusted are not determinable at Closing (including, but not limited to, items set forth in this Article 5), the adjustment shall be made subsequent to the Closing within thirty (30) days following ~~Closing, at which time all prorations shall be deemed~~ the final determination of 2012 taxes and ~~not subject to further post-closing adjustment~~assessments for the Project (the “Final Adjustment Date”). The provisions of this Article 5 and the ~~preceding sentence~~ obligations of Sellers and Buyer hereunder shall survive the ~~Closing. 13.2. Rents which are delinquent as of the~~ Closing ~~Date~~ and shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for deemed merged into any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser instrument delivered at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 2 contracts

Samples: Purchase Agreement (G REIT Liquidating Trust), Purchase Agreement (NNN 2002 Value Fund LLC)

Prorations. ~~13.1~~With respect to each Property, the following shall be adjusted between Contributor and Company and shall be prorated as of 12:01 A.M. local time on the Closing Date as if Company was the owner of the Property for the entire Closing Date: (a) Base rents (and, subject to Section 7.4(d) below, reimbursements for operating expenses, insurance, and Real Estate Taxes) payable under the Leases (the “Rents”) for the month of Closing shall be prorated as of the Closing Date, except that no proration shall be made for Rents which are due as of the Closing Date but which have not been paid by Tenants as of the Closing Date (hereinafter called the “Delinquent Rents”). Any Delinquent Rents collected after the Closing shall be applied as follows: (~~exclusive~~ i) first, to the calendar month for which the payment is made; (ii) second, to post-Closing delinquencies owed to Company; (iii) third, to Company’s costs of collecting post-Closing delinquencies, and (iv) fourth, to pre-Closing delinquencies owed to Contributor. For a period of one hundred twenty (120) days after the Closing, Company shall use reasonable efforts to collect any Delinquent Rents that accrued prior to the Closing Date and to collect from the Defaulting Tenants any delinquent amounts for base rents, ~~but including prepaid~~ additional rents~~); prepaid associations dues~~, ~~refundable security deposits (which will be assigned to~~ percentage rents and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilityother Tenant charges, ~~if any~~damages, ~~for such items); operating expenses which are reimbursable by the tenants~~ or costs for the period prior to the Closing ~~Date less any amount previously paid by the tenants shall be credited~~ or otherwise owed and immediately pay to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid Contributor any such ~~utilities (so long~~ amounts actually collected. Without limiting the foregoing, Contributor shall have the right to pursue all remedies against any Tenant or Defaulting Tenant to collect Delinquent Rents, provided that Contributor may not seek as ~~no more than thirty (30) days~~ a remedy in ~~advance in~~ any litigation against a Tenant the ~~ordinary course~~ termination of ~~business), then Purchaser shall be charged its portion~~ any Lease or the dispossession of ~~such payment at Closing~~any Tenant. ~~No proration shall be made for utility expenses that are separately metered~~ Contributor and Company each agrees to ~~and paid directly~~ forward any Rents received by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to it after the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the ~~Properties~~other, ~~i.e.~~if and as applicable hereunder, ~~those agreements which Seller has entered into~~ for application in accordance with ~~firms who are entitled to a commission based on services rendered~~ the provisions hereof. This Section 7.4(a) shall survive Closing. (b) Real Estate Taxes due and ~~the extent to which they are able to achieve a reduction~~ payable in the ~~real estate taxes otherwise payable with respect~~ calendar year of Closing relating to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements Property shall be prorated as of the Closing Date ~~so that Seller~~ except to the extent payable or reimbursable by Tenants on an annual or semi-annual basis. If the Closing shall occur before the Real Estate Tax rate is fixed for the then current year, the apportionment of Real Estate Taxes shall be ~~responsible~~ made on the basis of the Real Estate Tax rate for the immediately preceding year applied to the latest assessed valuation of the Property, provided that, if the Real Estate Taxes actually due for the current year are more or less than the Real Estate Taxes for the preceding year, then within thirty (30) days after the issuance of the then current year’s Real Estate Tax xxxx, Contributor and Company shall adjust the proration of such Real Estate Taxes and Contributor or Company, as the case may be, shall pay to the other any ~~costs associated therewith prior~~ amount required as a result of such adjustment. (c) All items of expense for the Property, including but not limited to utility charges, maintenance charges, and charges under the Contracts (but excluding any such charges paid or payable directly by Tenants to parties other than Contributor), shall be prorated as of Closing Date. Contributor and Company shall cooperate to arrange for final utility readings as close to the Closing Date as possible and ~~Purchaser shall~~ the issuance of a final xxxx to Contributor with Company being designated the billing party in lieu of Contributor for all utilities that may be ~~responsible for any costs associated therewith arising~~ in the name of Contributor from and after the Closing Date. ~~All prorations described in this Agreement (except prorations for real and personal property taxes which~~ Contributor shall be ~~deemed final~~ entitled to retain any deposits of Contributor held by utility companies with respect to the Property. (d) Contributor shall be entitled to receive and retain all amounts payable by Tenants as ~~prorated on~~ estimated payments for Real Estate Taxes, operating expenses and other pass-through items through the Closing Date. On or before the date that is three (3) days prior to the Closing Date, Contributor shall provide Company with an operating expense statement setting forth (i) the actual costs incurred by Contributor for Real Estate Taxes, operating expenses and other pass-through items during Contributor’s period of ownership that are reimbursable to Contributor, as landlord, by Tenants under the Leases for calendar years 2015 and 2016 (collectively, the “Reimbursable Expenses”); (ii) the Tenant reimbursements for such amounts actually paid to Contributor by Tenants for calendar years 2015 and 2016 (“Actual Tenant Reimbursements”); and (iii) a reconciliation of the difference between the two (i.e., establishing that the Reimbursable Expenses were either more or less than the Actual Tenant Reimbursements). Company shall be ~~subject~~ responsible for calculating the year-end reconciliations of Tenant reimbursements of such amounts for calendar year 2016 and shall deliver such calculations to ~~post-closing adjustments~~ Contributor no later than April 1, 2017. Any amount due Contributor pursuant to the foregoing calculations (in the event the Actual Tenant Reimbursements are less than the Reimbursable Expenses) or Company (in the event the Actual Tenant Reimbursements are more than the Reimbursable Expenses), as ~~necessary~~ the case may be, shall be paid by Company to ~~reflect later relevant information not available at~~ Contributor or by Contributor to Company, as the ~~Closing and~~ case may be, on or before April 30, 2017. Company shall use good faith, commercially reasonable efforts to ~~correct~~ collect any ~~errors made at the Closing with respect to such prorations~~additional Tenant reimbursements due from Tenants; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date Company shall not be ~~prorated. Instead~~required to xxx any Tenant for such amount or dispossess any Tenant from its premises. (e) Except as otherwise provided in Section 7.4(b), to in the ~~extent~~ case of any Taxes that ~~Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to~~ are imposed on a ~~tenant's occupancy of a portion of the Real Property~~ periodic basis and are payable for any Tax period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action begins on or ~~otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease~~ before the Closing Date and ~~said Lease is not assigned~~ ends after the Closing Date (a “Straddle Period”), the portion of such Tax which relates to the ~~Purchaser. Furthermore~~Tax period (or portion thereof) ending on or prior to the Closing Date (the “Pre-Closing Period”) shall be (i) in the case of any Taxes other than Taxes based upon or related to income, gains or receipts (including sales and use Tax), or employment or payroll Taxes, be deemed to be the amount of such Tax for the entire Straddle Period multiplied by a fraction, the ~~Seller shall not have~~ numerator of which is the ~~right to retain any portion~~ number of days in the Straddle Period ending on the Closing Date and the denominator of which is the number of days in the entire Straddle Period, and (ii) in the case of any ~~security deposit held by Seller~~ Tax based upon or related to income, gains or receipts (including sales and use Tax), or employment or payroll Taxes, be deemed equal to the amount which would be payable if ~~any~~the Straddle Period ended on the Closing Date based on an interim closing of the books. After the Closing, Contributor shall, be responsible for and shall indemnify the Company (and each of its members) and hold it harmless from and against: (x) all Taxes relating to the Properties for all Pre-Closing Periods, (y) with respect to any ~~Lease which will remain effective subsequent~~ Straddle Period, all Taxes relating to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties ~~pursuant~~ attributable to the ~~following terms~~ portion of such Straddle Period that ends on and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before includes the Closing Date, ~~Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost~~ and ~~expense. Such listing and/or advertisement may list the Purchaser's name~~ (z) any and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion all Taxes of any Person imposed on any of the ~~cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event~~ Entities or any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit member of the ~~Seller~~ Entities as a transferee or ~~constitute a credit against a debt otherwise owed~~ successor, by contract or otherwise, which Taxes relate to an event or transaction occurring before the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysClosing. (f) ~~If Purchaser continues to use said logos or trade names beyond~~ Contributor shall calculate the ~~period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized~~ prorations contemplated by ~~federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.~~this Section 7.4

Appears in 2 contracts

Samples: Contribution Agreement (Pillarstone Capital Reit), Contribution Agreement (Whitestone REIT)

Prorations. ~~13.1~~12.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); prepaid or accrued (as the case may be) interest on the Existing Bond and Mortgage Documents, water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of ~~6% of prorated rents credited to Purchaser~~5%; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellertaxes; and other similar items shall be adjusted ratably as of ~~11:59 p.m.~~ 12:01 a.m. on the Closing Date, and credited to against the balance of the cash due at Closing. ~~Utilities~~To the extent any escrows or bond repayment deposits established in connection with the Bonds or Existing Bond and Mortgage Documents are not refunded to Seller at Closing, ~~including water, sewer, electric, and gas~~ the proceeds in said escrows shall be ~~prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period~~ assigned to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller amounts thereof shall be ~~reimbursed~~ a credit to Seller at ~~Closing for any utility deposits which~~ the ~~Seller has deposited with any utility company and which will be assigned to the Purchaser at~~ Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. ~~The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect~~ All prorations will be final except as to ~~the Properties, i.e., those agreements which Seller has entered into with firms who are entitled~~ delinquent rent referred to ~~a commission based on services rendered and the extent to which they are able to achieve a reduction~~ in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing DateParagraph 12.2 below. 12.2. All ~~costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of~~ basic rent paid following the Closing Date ~~so that Seller shall be responsible for~~ by any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions tenant of the ~~preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser~~ Property who is ~~able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent~~ indebted under a lease for basic rent ~~attributable to a tenant's occupancy of a portion of the Real Property~~ for any period prior to ~~the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to~~ and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before including the Closing Date ~~and said Lease is not assigned to~~ after the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) payment to Purchaser at of all current basic rent shall be deemed a "Post-Closing ~~a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller,~~ Receipt" until such time as all such indebtedness is paid in ~~place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:~~ full. Within ten (~~a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180~~10) days ~~subsequent to the date when the public telephone directory pertaining to~~ following each ~~Property is published subsequent to the~~ receipt by Purchaser of a Post-Closing ~~Date. During such period~~Receipt, Purchaser shall ~~have the right~~ pay such Post-Closing Receipt to ~~use the existing logos~~Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall ~~not~~ use ~~the existing logos or trade name on stationery~~reasonable efforts to collect all amounts which, ~~business cards~~upon collection, ~~contracts or other documents~~would constitute Post-Closing Receipts hereunder, ~~and~~ but shall not ~~use the existing trade name in responding~~ be liable to ~~oral inquiries regarding the Properties except~~ Seller for its failure to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovecollect same. ~~In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs~~ Within 120 days after ~~the date hereof but before~~ the Closing Date, Purchaser shall ~~have~~ deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to ~~place a listing and/or advertisement in such publication~~ conduct an audit, at the expense of Seller at reasonable times and upon reasonable notice, of Purchaser's ~~sole cost~~ books and ~~expense. Such listing and/or advertisement may list~~ records to verify the ~~Purchaser's name~~ accuracy of the Post-Closing Receipts reconciliation statement and ~~telephone number.~~ upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller ~~may also place a listing and/or advertisement in such publication~~said additional Post-Closing Receipts, and in the event ~~that Seller decides to place such a listing and/or advertisement~~Seller's audit discovers additional Post-Closing Receipts greater than $5,000.00, ~~Seller~~ Purchaser shall ~~be entitled to a pro-rata credit for such portion of~~ pay the cost of ~~such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use~~ performing Seller's audit. Paragraph 12.2 of ~~such listings or advertising subsequent to~~ this Agreement shall survive the Closing ~~Date, then Purchaser shall be responsible to pay same subsequent to~~ and the ~~Closing Date (but no such payment shall accrue to the benefit~~ delivery and recording of the ~~Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)~~deed. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 2 contracts

Samples: Agreement of Sale (Balcor Realty Investors 85 Series I), Agreement of Sale (Balcor Realty Investors 85 Series Iii)

Prorations. ~~13.1~~6.7.1. ~~Rents (exclusive of delinquent~~ Real property taxes, assessments, rents, ~~but including prepaid rents); prepaid associations dues, refundable~~ security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Datedeposits, and ~~credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas~~ CAM expenses shall be prorated ~~at Closing based on the most recent ascertainable data~~through Escrow between Buyer and Seller as of Close of Escrow. ~~Seller shall pay at Closing the bills therefor for the period to~~ Rents, security deposits and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser CAM expenses shall be ~~charged its portion~~ approved by Buyer prior to Close of ~~such payment at Closing~~Escrow. ~~No proration shall be made for utility expenses that are separately metered to~~ Rents and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations other charges under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so Lease that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the ~~Closing Date shall~~ Close of Escrow will not be prorated~~. Instead~~, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the ~~extent~~ collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that ~~Purchaser is able~~ are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect ~~said delinquencies~~any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the ~~Purchaser~~ Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be ~~entitled~~ based on the latest available tax xxxx. If, after Close of Escrow, Buyer receives any further or supplemental tax xxxx relating to ~~receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for~~ any period prior to Close of Escrow, or Seller receives any further or supplemental tax xxxx relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. 6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution of this Agreement shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases executed after the date of ~~Closing, free~~ this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear to the primary term of the new lease. 6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any ~~claim thereon~~ and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the ~~Seller. Seller may use whatever lawful means~~ Tenant or any other third parties and based on events occurring on or before the date of closing and which are ~~available to Seller to collect~~ in any ~~delinquencies up to and until the day prior~~ way related to the ~~Closing Date~~Property, ~~provided that~~ and all expenses related thereto, including but not limited to court costs and attorneys' fees. 6.7.4. Buyer agrees to indemnify and hold Seller ~~shall not agree to reduce rents for~~ harmless of and from any ~~period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection~~ and all liabilities, claims, demands, suits and judgments, of any ~~rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date~~ kind or nature, including court costs and ~~said Lease is not assigned to the Purchaser. Furthermore~~reasonable attorneys' fees, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used brought by the ~~Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings~~ Tenant or any other third parties and ~~advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence~~ based on ~~the Closing Date and shall expire on the day which is one hundred eighty (180) days~~ events occurring subsequent to the date ~~when the public telephone directory pertaining to each Property is published subsequent~~ of closing and which are in any way related to the ~~Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements~~Property, and ~~telephone numbers~~all expenses related thereto, ~~with respect~~ including, but not limited to, court costs and attorneys' fees, provided, that the foregoing indemnity shall not be construed to ~~each Property without additional compensation~~ limit the effect of, nor shall it be applicable to the ~~Seller except as set forth~~ subject matter of, any of Seller's representations and warranties expressed in ~~Paragraph 13.1 herein. Purchaser shall not use~~ this Agreement or in the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned closing documents delivered by ~~the~~ Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 2 contracts

Samples: Purchase and Sale Agreement (T Reit Inc), Purchase and Sale Agreement (NNN 2003 Value Fund LLC)

Prorations. ~~13.1. Rents (exclusive of delinquent rents~~All normal and customarily proratable items relating to the Purchased Assets, ~~but including prepaid rents); prepaid associations dues~~including, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and without limitation, Real Property Taxes, personal property ~~taxes prorated on a~~ taxes, utility bills, alarm and security bills, ground lease rent and tower lease rent (collectively, the "~~net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the~~ Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30Prorations") days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of such assets' respective Closing Date, Seller being charged and credited for all of the same up to such date ("Seller's Closing Date Prorations") and Purchaser being charged and credited for all of the same on and after such date ("Purchaser's Closing Date Prorations"). All earnxxx xxxey deposits held by Seller under Tower Leases for which Purchaser assumes liability under a Tower Lease Assignment and Assumption Agreement shall be credited in favor of Purchaser against the Purchase Price. The Pre-Paid Expenses shall be credited in favor of Seller against the Purchase Price in the aggregate amount thereof. Within ninety (90) days after each Closing Date, the Seller will prepare and notify Purchaser of the Closing Date ~~so that Seller shall be responsible for any costs associated therewith prior~~ Prorations applicable to ~~the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the~~ such Closing Date. ~~All prorations described in this Agreement~~ If Purchaser disagrees with Seller's calculation of Closing Date Prorations, Purchaser will notify Seller within five (~~except prorations for real and personal property taxes which~~ 5) business days after receipt of the calculation. If the parties cannot resolve a disagreement as to such calculation within three (3) business days thereafter, they shall ~~be deemed final as prorated on~~ promptly submit the ~~Closing Date) shall be subject~~ disagreement to ~~post-closing adjustments as necessary to reflect later relevant information not available at~~ an arbitrator mutually selected by the ~~Closing and to correct any errors made at~~ parties (the ~~Closing~~ "Arbitrator"), whose decision with respect to such ~~prorations; provided, however, that such prorations shall~~ Closing Date Prorations (which decision must be ~~deemed~~ rendered within ten (10) business days after submission) will be final and ~~not subject to further post~~binding. Purchaser and Seller will each pay one-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions half of the ~~preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as~~ expenses of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing DateArbitrator. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 2 contracts

Samples: Asset Purchase Agreement (LCC International Inc), Asset Purchase Agreement (LCC International Inc)

Prorations. ~~13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will~~ The following adjustments to the Purchase Price paid hereunder shall be ~~assigned to~~ made between Seller and ~~assumed by~~ Purchaser and ~~credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of~~ shall be prorated ~~rents credited to Purchaser; real and personal property taxes prorated~~ (as applicable) on a ~~"net"~~ per diem basis ~~(i.e. adjusted for all tenants' liability,~~ as if ~~any, for such items); operating expenses which are reimbursable by~~ Purchaser owned the ~~tenants~~ Property for the ~~period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m.~~ entire day on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities : (~~so long as no more than thirty (30~~a) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the All real estate taxes ~~otherwise~~ and installments of special assessments due and payable with respect to the ~~Properties~~calendar year of Closing. ~~The fees or commissions~~ All other installments of special assessments not yet due and payable ~~to said consultants (if any)~~ shall be ~~treated as a portion~~ the responsibility of Purchaser. If at the ~~real estate~~ time of Closing the tax ~~liability~~ rate or the assessed valuation for the current year has not yet been fixed, taxes shall be prorated based upon the tax rate and the assessed valuation established for the previous tax year; provided, however, that Seller and Purchaser agree that to the extent the actual taxes for the current year differ from the amount so apportioned at Closing, the parties hereto will make all necessary adjustments by appropriate payments between themselves following the Closing, and this provision shall survive Closing. (b) Current rents, advance rentals and other income from the Property shall be ~~pro-rated~~ prorated between Seller and Purchaser at Closing based upon such amounts actually collected by Seller as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day Rent which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are unpaid or delinquent as of the Closing Date shall not be prorated~~. Instead~~, to but such unpaid or delinquent rent collected after the ~~extent that Purchaser is able to collect said delinquencies, the Purchaser~~ Closing Date shall be ~~entitled to receive such delinquent~~ delivered as follows: (i) if Seller collects any rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to after the Closing Date, ~~provided that~~ Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) deliver to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: any such rent within fifteen (~~a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180~~15) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the ~~date hereof but before~~ receipt thereof and (ii) if Purchaser collects any unpaid or delinquent rent after the Closing Date, Purchaser shall ~~have~~ deliver to Seller any such rent relating to the ~~right~~ period prior to ~~place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list~~ the ~~Purchaser's name and telephone number~~Closing Date within fifteen (15) days after the receipt thereof. Seller and Purchaser agree that all rent received by Seller or Purchaser after the Closing Date shall be applied first to current rentals and then to delinquent rentals, if any, in inverse order of maturity provided any payments to Seller shall be net of costs of collection. Purchaser will make a good faith effort after Closing to collect all rents (including without limitation the Pass Through Expenses and percentage rents described in Section 4.4(c) below) in the usual course of Purchaser’s operation of the Property, but Purchaser will not be obligated to institute any lawsuit or incur any expense to collect delinquent rents. Notwithstanding the foregoing provisions, Seller shall not be required to prorate any amounts collected by Seller after Closing from former tenants of the Property, it being understood and agreed that Seller may ~~also place~~ retain all amounts that Seller recovers from such former tenants. (c) With respect to additional rent attributable to insurance, taxes, common area maintenance and other operating expenses which are passed through to tenants under the Leases (the “Pass Through Expenses”) and as of the Closing Date are not yet collected, Purchaser shall, upon collection of such Pass Through Expenses, but subject to the same rules of application set forth in Section 4.4(b) above, remit to Seller an amount equal to that portion of Pass Through Expenses which accrued prior to the Closing Date. With respect to Pass Through Expenses which have not been billed to tenants as of the Closing Date, Purchaser shall xxxx each tenant for same in accordance with each such tenant’s Lease. Within one hundred fifty (150) days after the end of 2010, Seller shall, with Purchaser’s reasonable cooperation and contingent upon receipt of any information held by Purchaser and not in the possession of Seller and reasonably necessary to such obligation, prepare a ~~listing and/or advertisement~~ reconciliation of Pass-Through Expenses. Within one hundred fifty (150) days after the end of the year in which Closing occurs, Purchaser shall, with Seller’s reasonable cooperation and contingent upon receipt of any information held by Seller and not in the possession of Purchaser and reasonably necessary to such ~~publication~~obligation, ~~and in~~ prepare a reconciliation of Pass-Through Expenses. In the event that any reconciliation shows that either Seller ~~decides~~ or Purchaser is owed an adjusting payment, then the party owing such payment shall promptly remit the same. (d) Charges under service agreements assumed by Purchaser, utility charges for which Seller is liable, and other operating expenses of the Property shall be prorated between Seller and Purchaser at Closing. (e) Security deposits shall, at Seller’s option, either be transferred or credited to ~~place such a listing and/or advertisement~~Purchaser at Closing. Refundable cash or other refundable deposits posted with utility companies or other entities in connection with the Property shall, at Seller’s option, either be assigned to Purchaser and credited to Seller at Closing, or Seller shall be entitled to ~~a pro-rata~~ receive and retain such refundable cash and deposits. Seller shall cause its lender and Wellstream International Limited (“Wellstream”) to execute such documents as may be required to cause the letter of credit ~~for such portion of the cost of such listing and/or advertisement attributable~~ to ~~the period after Closing. (d) In the event any third party (such~~ be transferred to Purchaser as ~~telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to~~ soon as is reasonably practical following the Closing ~~Date, then Purchaser~~ and Seller shall ~~be responsible~~ cause Wellstream to ~~pay same subsequent to~~ reduce the ~~Closing Date (but no such payment shall accrue to the benefit~~ amount of ~~the Seller or constitute a~~ its scheduled 2011 letter of credit ~~against a debt otherwise owed~~ reduction by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Two Thousand Dollars ($~~100.00~~2,000) ~~for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however,~~ such that it shall ~~such extended license period exceed ninety~~ be reduced by Seventy-Three Thousand Dollars (90$73,000) ~~additional days~~instead of Seventy-Five Thousand Dollars ($75,000). (f) If Purchaser ~~continues~~ shall be responsible for the payment of (i) all Tenant Inducement Costs (as hereinafter defined) and leasing commissions which become due and payable (whether before or after Closing) (A) as a result of any renewals or expansions of existing Leases, and (B) under any new Leases (including any amendments of existing Leases) in each instance to ~~use said logos or trade names beyond~~ the ~~period allowed above for~~ extent entered into after the Effective Date of this Agreement which ~~a temporary license has~~ have been ~~granted, then Seller~~ approved (or deemed approved) by Purchaser in accordance with the ~~owner~~ terms of ~~said rights~~this Agreement; and (ii) all Tenant Inducement Costs and leasing commissions which become due and payable under an existing lease for a right exercised after the Effective Date. Seller shall be responsible for all other Tenant Inducement Costs. If as of the Closing Date Seller shall have ~~all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover~~ paid any ~~damages authorized by such laws.~~Tenant Inducement Costs

Appears in 2 contracts

Samples: Purchase Agreement, Purchase Agreement (Wells Core Office Income Reit Inc)

Prorations. ~~13.1. Rents (exclusive of delinquent rents~~Sellers and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately preceding the Closing ~~Date~~Date (the “Closing Time”), the following (collectively, the “Proration Items”) real estate and personal property taxes and assessments for the year in which Closing occurs, utility bills (except as hereinafter provided), collected Rentals (subject to the terms of (b) below), expenses under the Permitted Exceptions, and expenses under Service Contracts assumed by Purchaser at Closing payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Sellers will be charged and credited for the amounts of all of the Proration Items relating to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period up to and including the ~~Closing~~Closing Time, and ~~the~~ Purchaser ~~shall pay the utility bills therefor~~ will be charged and credited for all ~~periods subsequent thereto~~of the Proration Items relating to the period after the Closing Time. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser Such preliminary estimated Closing prorations shall be ~~charged its portion of such payment at Closing. No proration shall~~ set forth on a preliminary closing statement to be ~~made for utility expenses that are separately metered to~~ prepared by Sellers and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable submitted to Purchaser ~~and Seller. Seller~~ for Purchaser’s approval (which approval shall not be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent unreasonably withheld) two (2) Business Days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Sellers and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Sellers (if the preliminary prorations result in a net credit to Sellers) or by Sellers to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the ~~amount of any~~ actual amounts of the ~~items to be prorated is~~ Proration Items are not ~~then ascertainable~~known as of the Closing Time, the ~~adjustments thereof shall~~ prorations will be made at Closing on the basis of the ~~most recent ascertainable data~~best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Sellers and Purchaser. ~~The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect~~ No prorations will be made in relation to insurance premiums (except to the ~~Properties~~extent covered by the proration of Operating Expense Recoveries), ~~i.e., those agreements which Seller has entered into with firms who are entitled~~ and Sellers’ insurance policies will not be assigned to ~~a commission based on services rendered~~ Purchaser. Final readings and ~~the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (~~final xxxxxxxx for utilities will be made if ~~any) shall be treated as a portion of the real estate tax liability to be pro-rated~~ possible as of the Closing ~~Date. All costs associated with telephone directory listings and any other prepaid advertisements shall~~ Time, in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made -38- at the Closing with respect to ~~such prorations; provided~~utility bills (except to the extent covered by the proration of Operating Expense Recoveries). Sellers will be entitled to all deposits presently in effect with the utility providers, ~~however, that such prorations~~ and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. Seller shall cooperate in good faith with Purchaser to facilitate the transfer of all utilities to Purchaser at and/or immediately following the Closing. A final reconciliation of Proration Items shall be ~~deemed final~~ made by Purchaser and ~~not subject to further post-closing adjustments at 5:00 PM Chicago time~~ Sellers on or before November 30, 2016 (herein, the ~~day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment~~“Final Proration Date”). The provisions of ~~the preceding sentence shall~~ this Section 10.4 will survive the ~~Closing. 13.2. Rents which are delinquent as of the~~ Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant Final Proration Date has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publicationoccurred, and in the event ~~that Seller decides~~ any items subject to ~~place such a listing and/or advertisement~~proration hereunder are discovered prior to the Final Proration Date, ~~Seller~~ the same shall be ~~entitled to a pro-rata credit for such portion~~ promptly prorated by the parties in accordance with the terms of ~~the cost of such listing and/or advertisement attributable~~ this Section 10.4. Notwithstanding anything to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth contrary provided in this ~~paragraph shall expire on the date(s) set forth above. If~~ Agreement including, but not limited to, this Section 10.4(a), Sellers and Purchaser ~~continues~~ hereby agree to use the ~~name currently being used by the Property subsequent to the expiration date of this temporary license set forth above~~following, ~~then Purchaser shall be liable~~ estimated 2016 real estate taxes and assessments for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws purposes of the ~~state where such~~ proration of same at Closing: (x) $470,000.00 for the Shoppes at Parkland Real Property ~~is located to prevent such unauthorized use or to recover any damages authorized by such laws~~and the Shoppes at Parkland Improvements and (y) $180,000.00 for the University Palms Real Property and the University Palms Improvements.

Appears in 1 contract

Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)

Appears in 1 contract

Samples: Agreement of Sale and Purchase (Mack Cali Realty Corp)

Prorations. ~~13.1. Rents (exclusive~~ Real estate taxes, expenses of ~~delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to~~ operation and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any ~~amount previously paid by the tenants shall be credited to Seller; and~~ other similar items shall be adjusted ratably as of ~~11:59 p.m. on~~ the time of closing. Taxes for the year of Closing shall be prorated as of the Closing Date~~, and credited to the balance of the cash due at Closing~~. ~~Utilities, including water, sewer, electric, and gas~~ Current rents collected from Tenants under Leases shall be prorated at for the month during which the Closing ~~based on~~ occurs (the ~~most recent ascertainable data~~term “rents” as used in this Agreement includes all payments due and payable by Tenants under the Leases). Real estate taxes for the calendar year of Closing shall be prorated as of the Closing Date. Unpaid and delinquent rent collected by Seller and Purchaser after the Closing Date will be delivered as follows: (i) if Seller collects any unpaid or delinquent rent for the Property, Seller will, within fifteen (15) days after the receipt thereof, deliver to Purchaser any such rent which Purchaser is entitled to hereunder relating to the date of Closing and any period thereafter, and (ii) if Purchaser collects any unpaid or delinquent rent from the Property, Purchaser will, within fifteen (15) days after the receipt thereof, deliver to Seller any such rent which Seller is entitled to hereunder relating to the period prior to the date of Closing. Seller and Purchaser agree that all rent received by Seller or Purchaser will be applied first to rents that became due and payable during the calendar month of Closing, and second, to those which were due and payable after Closing, and third, to those which were due and payable prior to Closing. Purchaser will use commercially reasonable efforts after Closing to collect all unpaid and delinquent 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 such unpaid or delinquent rents. In the event that there shall ~~pay at~~ be any rents or other charges under any Leases which, although relating to a period prior to Closing, do not become due and payable until after Closing or are paid prior to Closing but are subject to adjustment after Closing (e.g., such as year end operating and common area expense reimbursements and the ~~bills therefor for~~ like), then any rents or charges of such type received by Purchaser or its agents or Seller or its agents subsequent to Closing will, to the extent applicable to a period ~~to and including~~ extending through the Closing, be prorated between Seller and ~~the~~ Purchaser ~~shall pay the utility bills therefor~~ as of Closing and Seller’s portion thereof will be remitted promptly to Seller by Purchaser without reduction for ~~all periods subsequent thereto~~any costs of collection or processing. ~~If the utility company~~ At Closing, Purchaser will ~~not issue separate bills, the Purchaser shall receive~~ be entitled to a credit against the Purchase Price for ~~Seller's portion~~ all cash security deposits held pursuant to any of the Leases (and ~~shall pay the entire utility bill after Closing. If Seller hxx xre~~any pre-paid rent thereunder if not then earned by Seller) and Seller shall deliver to Purchaser any ~~such~~ non-cash security deposits thereunder, if any. Payments of accounts for water, sewer, electricity, telephone and all other utilities ~~(so long as no more than thirty (30) days in advance~~ currently in the ~~ordinary course~~ name of ~~business), then Purchaser~~ Seller (or its managing agent) shall be ~~charged its portion~~ placed in the name of ~~such payment at Closing. No proration~~ Purchaser on the Closing Date and Seller shall arrange for final meter readings and metered services to be ~~made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore,~~ conducted on the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and SellerClosing Date. Seller shall be ~~reimbursed at Closing~~ responsible to pay in full all bills for such utility charges related to any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith period prior to the Closing Date and Purchaser shall be responsible ~~for~~ to pay all utility charges related to any ~~costs associated therewith arising from~~ period on and ~~after~~ subsequent to the Closing Date. ~~All prorations described in this Agreement (except prorations~~ With respect to utilities which are not metered, charges for ~~real~~ such service shall be prorated as of the Closing Date, based on charges for the previous billing period, and Purchaser and Seller shall receive credits or charges, as appropriate, with such amounts to be re-prorated promptly after the final bills are issued. Seller shall cooperate with Purchaser to effect the transfer of utility accounts from Seller to Purchaser. Expenses pertaining to Service Agreements that Purchaser elects to assume and personal property taxes ~~which~~ (if applicable) and any other expenses relating to the Property shall be ~~deemed final as~~ prorated on between the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent parties as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Real Estate Purchase Contract (Nuveen Global Cities REIT, Inc.)

Prorations. ~~13.1. Rents~~ (~~exclusive of delinquent rents~~a) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"): (i) Rents, in accordance with Subsection 10.4(b) below. (ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon. (iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and ~~credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas~~ a per diem adjustment shall be ~~prorated at~~ made for the days between the meter reading date and the Closing Date based on the most recent ~~ascertainable data~~meter reading. (iv) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. (v) Such other items of income and expense as are typically prorated at closing similar to the transaction contemplated by this Agreement. Seller ~~shall pay at Closing the bills therefor~~ will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the ~~Closing~~Proration Time, and ~~the~~ Purchaser ~~shall pay the utility bills therefor~~ will be charged and credited for all ~~periods subsequent thereto~~of the Proration Items relating to the period after the Proration Time. ~~If the utility company will not issue separate bills, the~~ The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser ~~shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities~~ two (~~so long as no more than thirty (30~~2) days ~~in advance in~~ prior to the ~~ordinary course of business~~Closing Date (the "CLOSING STATEMENT"). The Closing Statement, ~~then Purchaser~~ once agreed upon, shall be ~~charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly~~ signed by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the ~~amount of any~~ actual amounts of the ~~items to be prorated is~~ Proration Items are not ~~then ascertainable~~known as of the Closing Date, the ~~adjustments thereof shall~~ prorations will be made at Closing on the basis of the ~~most recent ascertainable data~~best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. ~~The Purchaser shall assume~~ No prorations will be made in relation to insurance premiums, and Seller's ~~obligations under the Seller's existing real estate tax consulting agreements with respect~~ insurance policies will not be assigned to ~~the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered~~ Purchaser. Final readings and ~~the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (~~final xxxxxxxx for utilities will be made if ~~any) shall be treated as a portion of the real estate tax liability to be pro-rated~~ possible as of the Closing Date~~. All costs associated with telephone directory listings and any other prepaid advertisements shall~~ , in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers, but Seller will, if necessary, maintain such ~~prorations; provided, however, that~~ deposits until such ~~prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago~~ time ~~on the day which is~~ as Purchaser can post its own deposits (but in no event longer than thirty (30) days ~~following~~ after Closing~~, at which time all prorations shall~~ ) so that such utility service will not be ~~deemed final and not subject~~ discontinued to ~~further post-closing adjustment~~the Property. The provisions of ~~the preceding sentence shall~~ this Section 10.4(a) will survive the ~~Closing~~Closing for twelve (12) months. ~~13.2. Rents which are delinquent~~ (b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing ~~Date shall not be prorated~~and attributable to any period following the Proration Time. ~~Instead~~"RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include Tenant's share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent ~~that Purchaser is able to collect said delinquencies~~the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenant under the ~~Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion~~ Lease or from other occupants or users of the ~~Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller~~Property. ~~Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day~~ Rental is "DELINQUENT" when it was due prior to the Closing Date, ~~provided that Seller shall~~ and payment thereof has not ~~agree~~ been made on or before the Proration Time. Delinquent Rental will not be prorated. Purchaser agrees to ~~reduce rents for any period of time after Closing in order~~ use good faith collection procedures with respect to ~~induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise)~~ the collection of any ~~rents delinquent~~ Delinquent Rental, but Purchaser will have no liability for the failure to collect any ~~period prior~~ such amounts and will not be required to ~~Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned~~ pursue legal action to ~~the Purchaser. Furthermore, the Seller shall not have the right to retain any portion~~ enforce collection of any ~~security deposit held~~ such amounts owed to Seller by ~~Seller~~ Tenant. All sums collected by Purchaser from and after Closing from Tenant (~~if any~~excluding tenant specific xxxxxxxx for tenant work orders and other specific services as described in and governed by Section 10.4(d) ~~with respect~~ below) will be applied first to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) current amounts owed by such Tenant to Purchaser ~~at Closing a temporary license~~ and ~~right~~ then to ~~use the logos currently used~~ delinquencies owed by ~~the Property which are the property of an Affiliate of~~ such Tenant to Seller~~, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant~~ . Any sums due Seller will be promptly remitted to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)

Prorations. ~~13.1. Rents (exclusive of delinquent rents~~Rentals, ~~but including prepaid rents); prepaid associations dues~~revenues, ~~refundable security deposits (which will be assigned to~~ and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilityother income, if any, ~~for such items); operating expenses which are reimbursable by~~ from the ~~tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller;~~ Property, taxes, assessments, improvement bonds, service or other contract fees, equity costs, and other ~~similar items shall be adjusted ratably as of 11:59 p.m. on~~ expenses affecting the ~~Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas~~ Property shall be prorated ~~at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to~~ between Transferee and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated Transferor as of the Closing Date ~~so that Seller~~ based on a 365 day year. For purposes of calculating prorations, Transferee shall be deemed to be title holder of the Property, and therefore entitled to the income and responsible for ~~any costs associated therewith prior to~~ the ~~Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and~~ expenses, after 12:01 a.m. on the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent Delinquent rentals as of the Closing Date shall not be prorated~~. Instead~~, but when paid to ~~the extent that Purchaser is able to collect said delinquencies, the Purchaser~~ Transferee shall be ~~entitled~~ delivered by Transferee to ~~receive such delinquent rent attributable to a tenant's occupancy of a portion of~~ Transferor, less the ~~Real Property for any period prior to~~ costs and expenses incurred by Transferee in collecting the ~~date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date,~~ same (provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant all current rent has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) then been paid with respect to ~~any Lease which will remain effective subsequent to~~ such Leases). After the Closing, ~~even though the tenant is~~ Transferor shall have no right to proceed in any manner or make any claim against any Tenants for rents that were delinquent ~~in paying rent~~ as of the Closing Date~~. 13.3. To~~ , except to the extent ~~it is reasonably possible for~~ that any such person no longer occupies any portion of the ~~Seller to do so, the Seller shall grant (~~Property. All non-delinquent real estate taxes or ~~shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by~~ assessments on the Property ~~which are~~ shall be prorated based on the ~~property of an Affiliate of Seller~~actual current tax xxxx, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted but if such tax xxxx has not yet been received by ~~this paragraph shall commence on~~ Transferor by the Closing Date ~~and shall expire on~~ or if supplemental taxes are assessed after the ~~day which is one hundred eighty (180) days subsequent~~ Closing for the period prior to the ~~date when~~ Closing, the ~~public telephone directory pertaining~~ parties shall make any necessary adjustment after the Closing by cash payment to ~~each Property is published subsequent~~ the party entitled thereto so that Transferor shall have borne all real property taxes, including all supplemental taxes, allocable to the period prior to the Closing ~~Date. During such period~~and Transferee shall bear all real property taxes, ~~Purchaser shall have the right to use the existing logos~~including all supplemental taxes, ~~in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation~~ allocable to the ~~Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents,~~ period from and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the ~~date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense~~Closing. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement If any expenses attributable to the Property and allocable to the period ~~after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent~~ prior to the Closing ~~Date~~are discovered or billed after the Closing, ~~then Purchaser~~ the parties shall ~~be responsible~~ make any necessary adjustment after the Closing by cash payment to ~~pay same subsequent~~ the party entitled thereto so that Transferor shall have borne all expenses allocable to the period prior to the Closing ~~Date (but no such payment~~ and Transferee shall ~~accrue~~ bear all expenses allocable to the ~~benefit of~~ period from and after the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth aboveClosing. ~~If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date~~ The provisions of this ~~temporary license set forth above, then Purchaser~~ Section 5.5 shall ~~be liable for and shall pay to~~ survive the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysClosing. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Acquisition and Contribution Agreement (Apartment Investment & Management Co)

Prorations. ~~13.1. Rents~~ (~~exclusive~~ a) The following shall all be prorated as of ~~delinquent~~ 12:01 a.m. on the date of Closing, on the basis of a 365-day year: (i) rents, ~~but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to~~ and ~~assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in~~ all other income from the ~~amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability~~Property, if any, ~~for~~ including, without limitation, any additional charges and expenses payable under the Leases, if any, all as and when actually collected (whether such ~~items); operating expenses which are reimbursable by the tenants for the period~~ collection occurs prior ~~to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on~~ to, on, or after the Closing Date); (ii) real property taxes and assessments for the year in which the Closing occurs, ~~and credited to the balance of the cash due at Closing. Utilities, including~~ (iii) water, ~~sewer~~sewer and utility charges, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid (iv) amounts payable under any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed service contracts Buyer assumes at Closing for ~~any utility deposits~~ the month in which the ~~Seller has deposited with any utility company~~ Closing occurs and ~~which will be~~ prior months, (v) annual permits (to the extent same are assigned to ~~the Purchaser~~ Buyer at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be ) and/or inspection fees (calculated on the basis of the ~~most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect~~ period covered), and (vi) any other expenses relating to the ~~Properties~~operation and maintenance of the Property. Buyer shall include all rent arrearages, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any~~) shall be treated as a portion of the real estate tax liability~~ , on Buyer's monthly invoices or xxxxxxxx to ~~be pro-rated as of the Closing Date. All costs associated with telephone directory listings~~ tenants and promptly deliver to Seller any ~~other prepaid advertisements shall be prorated as of the Closing Date so~~ such rent arrearages that ~~Seller shall be responsible for any costs associated therewith~~ relate to periods prior to the Closing ~~Date~~ if and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorationswhen collected by Buyer; provided, however, that ~~such prorations~~ rents received from delinquent tenants after the Closing Date that are designated for periods after Closing shall be ~~deemed final~~ applied first against tenant's current rent due and then against any delinquent rents. The amount of any security or other deposits required to be returned to tenant's under the Leases by Seller, if any, shall be credited against the cash portion of the Purchase Price; accordingly, Seller shall retain the deposits and Buyer shall be responsible for handling such deposits in accordance with the Leases and applicable law. Seller shall retain all utility deposits, if any. Seller and Buyer hereby agree that if any of the aforesaid prorations cannot ~~subject to further post-closing adjustments at 5:00 PM Chicago time~~ be calculated accurately on the ~~day which is~~ Closing Date, then the same shall be calculated within thirty (30) days ~~following Closing~~after the Closing Date, ~~at which time all prorations~~ or as soon as sufficient information is available to permit the parties to accurately calculate such proration(s), and either party owing the other party a sum of money based on such subsequent proration(s) shall pay said sum to the other party within ten (10) days after such calculation is made; provided, however, that the tax proration referenced in Section (ii) herein shall be ~~deemed~~ final ~~and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent~~ as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing~~, free from any claim thereon by the Seller~~. Seller ~~may use whatever lawful means are available to Seller to collect any delinquencies up to~~ shall be responsible for payment in full of all real estate taxes and ~~until the day~~ assessments for years prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) ~~The~~ Seller ~~stipulates that there is full and adequate consideration~~ shall pay the premium for the ~~license herein granted~~Title Policy except for that portion to delete the so-called "survey exception. ~~(c) Purchaser~~ " Buyer shall ~~make arrangements~~ pay all expenses associated with the ~~pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in~~ performance of Buyer's due ~~course and within the license period specified~~ diligence pursuant to Section 2.1 above. In Escrow fees and recording charges and any other expenses of the ~~event that~~ escrow for the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller sale shall be ~~entitled to a pro-rata credit for such portion~~ split equally between Buyer and Seller. Buyer shall pay the costs of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit execution and filing of the ~~Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth~~ Deed. All costs and charges described in this paragraph shall ~~expire on~~ be paid at Closing. Any bills received after the ~~date(s) set forth above. If Purchaser continues~~ Closing and not previously prorated in escrow shall be divided as provided herein, and shall be paid promptly upon receipt of a xxxx therefor, and any and all other costs and expenses relating to ~~use~~ the ~~name currently being used~~ purchase and sale transaction contemplated hereby shall be paid by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysparty incurring same. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Homes for America Holdings Inc)

Prorations. ~~13.1~~The following prorations shall be made as of 12:01 a.m. on the day the Closing occurs on the basis of a 365- day year. ~~Rents~~ At least two (~~exclusive of delinquent rents~~2) business days prior to the Closing Date, ~~but including~~ Escrow Holder shall deliver to Seller and Buyer a tentative proration schedule setting forth a preliminary determination. 5.2.1 Rentals, prepaid ~~rents);~~ rentals and prepaid ~~associations dues, refundable security deposits~~ payments (~~which will be assigned to~~ and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all ~~tenants' liability~~accrued interest thereon, if any) (collectively, "Rent") shall be prorated on the basis that Buyer shall receive a credit for ~~such items); operating expenses~~ all Rent which ~~are reimbursable~~ Seller has actually received before the Closing which is allocable to the period after the Closing and for all security deposits held by Seller. Buyer shall not receive a credit for any Rent Seller has not received as of the ~~tenants for~~ Closing which is allocable to the period prior to the Closing. If Buyer shall collect any such Rent after the Closing, Buyer shall promptly pay the same to Seller (provided that all rent collected by Buyer after Closing ~~Date less any amount previously paid by the tenants~~ shall be ~~credited~~ first applied to ~~Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on~~ unpaid rent accruing after the Closing Date, ). 5.2.2 Real estate taxes and ~~credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas~~ assessments shall be prorated at as of the Closing ~~based~~ on the basis of the most recent ~~ascertainable data. Seller shall pay at Closing the bills therefor~~ tax statement for the ~~period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will~~ Property. 5.2.3 Any adjustments or prorations not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long finally determined or agreed upon as ~~no more than thirty (30) days in advance in the ordinary course~~ of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by ~~Purchaser. If~~ Buyer to Seller, or by Seller to Buyer, as the case may be, from time to time in cash as soon as practicable following the receipt or determination of the information necessary to make the adjustments after the Closing Date. 5.2.4 Without limiting the generality of Section 5.2.3, after the adjustments with tenants under the Leases at the end of the calendar year in which the Closing occurs (or other applicable period) for taxes, assessments, maintenance charges and operating expenses (collectively, "CAM Charges"), Buyer shall prepare and present to Seller a calculation of the re-proration of taxes, assessments, CAM Charges and those operating expenses to which the CAM Charges relate, based on the actual amount of such items charged to or received by the parties for the year or other applicable fiscal period. The parties shall make the appropriate adjusting payment between them within thirty (30) days after presentment to Seller of Buyer's calculation. In addition, Seller shall provide Buyer with a credit for any unpaid tenant improvement expenses that are the landlord's obligation under Leases (other than New Documents and other than the $38,200 tenant improvement expense under the Lease with the University of Phoenix), and a credit for any free rent granted to tenants under Leases other than New Documents (other than the one month of free rent granted to the University of Phoenix for the month of March 2000). Seller represents to Buyer that Seller shall not dissolve or otherwise cease conducting business within one year after Closing and shall maintain sufficient assets to enable it to reasonably comply with its obligations under this paragraph and satisfy its other indemnification obligations under this Agreement. 5.2.5 For a period of twelve (12) months following the Closing Date, Buyer and Buyer's successors and assigns shall make available to Seller, and Seller shall make available to Buyer and Buyer's successors and assigns, and their respective employees, agents and representatives, all books and records maintained with respect to the Property which relate to any of the items to be prorated ~~is not then ascertainable~~or allocated under this Agreement in connection with the Closing, ~~the adjustments thereof~~ which books and records shall be ~~on the basis of the most recent ascertainable data~~made available for inspection and copying upon reasonable notice during ordinary business hours. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) Any such inspection shall be ~~treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings~~ at reasonable intervals and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaserinspecting party's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Arden Realty Inc)

Prorations. ~~13.1. Rents (exclusive~~ All revenues, income, receivables, costs, expenses and payables of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants Property shall be ~~credited to Seller; and other similar items shall be adjusted ratably~~ apportioned equitably between the parties as of ~~11:59 p.m. on the~~ Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the ~~most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements~~ actual number of days in a particular month, and with respect to the ~~Properties~~items enumerated below where a particular manner of apportion- ment is provided, ~~i.e.~~then apportionment of such item shall be made in such manner. The obligation to make apportionments shall survive Closing. Without limitation, ~~those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered~~ the following items shall be so apportioned: (i) Monthly rents and ~~the extent to which they are able to achieve a reduction in the~~ percentage rent and "passthroughs" of real estate taxes and operating expenses due from occupancy tenants under Tenant Leases, as and when collected. If at Closing there are any past due rents or charges owed by occupancy tenants, they shall not be prorated until received; Purchaser shall include such delinquencies in its normal billing and shall pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Tenant Lease). To the extent Purchaser receives amounts on account of Tenant Leases on or after the Closing Date, such payments shall be applied first toward then current rent owed to Purchaser in connection with the applicable Tenant Lease for which such payments are received, and any excess monies received shall be applied toward the payment of any delinquent rents, with Seller's share thereof being promptly delivered to Seller. Purchaser may not waive any delinquent rents nor modify a Tenant Lease so as to reduce or otherwise ~~payable~~ affect amounts owed thereunder for any period in which Seller is entitled to receive its share of charges or amounts without first obtaining Seller's written consent. Seller hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to Seller. Purchaser shall reasonably cooperate with Seller in any collection efforts hereunder (but shall not be require to litigate or declare a default in any Lease). With respect to ~~the Properties. The fees~~ delinquent rents and any other amounts or ~~commissions payable to said consultants (if any) shall be treated as a portion~~ other rights of any kind respecting tenants who are no longer tenants of the ~~real estate tax liability to be pro-rated~~ Property as of the Closing Date~~. All costs associated with telephone directory listings~~ , Seller shall retain all rights relating thereto. (ii) Real estate and personal property taxes and any ~~other prepaid advertisements~~ special assessments, taking into consideration discounts for the earliest permitted payment, based upon the latest previous tax levies. Such items shall be reapportioned between Seller and Purchaser if current tax rates differ from the latest previous tax rates as soon as the same are known. Seller agrees that to the extent any additional taxes, assessments or levies are imposed, assessed or levied against the Property, or any portion thereof, the Seller or the Purchaser at any time subsequent to Closing but with reference to any period prior thereto during Seller's ownership thereof, Seller shall promptly pay to Purchaser an amount equal to such additional assessments or levies. Similarly, if tax refunds become payable for periods during Seller's ownership of the Property, such amounts (subject to adjustments for the potential claims of occupancy tenants that paid tax increases by way of rent escalations to Seller) shall be promptly paid over to Seller. In the event that any assessments on the Property are payable in installments, then the installment for the current period shall be prorated ~~as of~~ (with Purchaser assuming the obligation to pay any installment due after the Closing ~~Date so that~~ Date). In no event shall Seller ~~shall~~ be charged with or be responsible for any ~~costs associated therewith prior to~~ increase in the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes ~~which shall be deemed final as prorated~~ on the ~~Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at~~ Property resulting from the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions sale of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property ~~for any period prior to the date of Closing, free~~ or from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time improvements made or lease entered into on or after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. ~~13.3. To~~ (iii) Transferable annual permits, licenses, and/or inspection fees, if any, on the ~~extent it is reasonably possible~~ basis of the duration of the same; (iv) Security Deposits, plus accrued interest, if any, payable thereon to tenants, and any other deposits and prepaid rent, shall be credited (or assigned) to Purchaser; (v) Utility charges levied against Seller or the Property, and Purchaser shall transfer all such utility services to its name and account immediately upon Closing; (vi) Service Contracts on the basis of the charge or premium for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:period involved; (avii) ~~The temporary license granted by this paragraph shall commence on the Closing Date~~ Tenant improvements and ~~shall expire on the day which is one hundred eighty (180~~leasing commissions in accordance with Paragraphs 7(a) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party7(b). (eviii) ~~Purchaser's temporary license set forth~~ All other operating expenses incurred in ~~this paragraph shall expire on~~ the ~~date(s) set forth above~~management and operation of the Property. ~~If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser~~ No insurance policies shall be ~~liable for~~ assigned hereunder, and accordingly there shall ~~pay to the owner~~ be no proration of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysinsurance premiums. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Arden Realty Inc)

Prorations. ~~13.1. Rents (exclusive~~ All items of ~~delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to~~ income and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants expense shall be ~~credited to Seller; and other similar items shall be~~ paid, prorated or adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the ~~Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as~~ close of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated business on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date (the "Proration Date") in the manner hereinafter set forth: 5.1 Purchaser shall be credited with (i) the amount of all rents received by Seller and attributable to the period commencing on the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (~~by legal action or otherwise~~ii) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any all unapplied refundable cash security ~~deposit~~ deposits held by Seller and which were made by tenants under all Leases in effect as of the Closing Date, and (~~if any~~iii) ~~with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent~~ all prepaid security deposits for Leases whose terms have not commenced as of the Closing Date. ~~13.3. To the extent it is reasonably possible~~ 5.2 All collected rents for the month of Closing shall be prorated between Purchaser and Seller ~~to do so,~~ based upon their respective days of ownership for such month in which the Closing occurs. Neither Purchaser nor Seller shall ~~grant~~ receive credit at Closing for any payments of rental obligations due but not paid as of the Proration Date. 5.3 Purchaser covenants to xxxx tenants on a monthly basis for amounts due from tenants attributable to periods prior to Closing for a period of three (3) consecutive months but shall have no obligation to enforce collection of any such past due amounts from or against any tenant. Any amounts received from tenants after Closing shall ~~arrange~~ be applied on a tenant by tenant basis in the following order: (i) first on account of any amount then due and payable or past-due and payable to Purchaser from such tenant, (ii) next, on account of any amount due Seller from such tenant for the ~~owner thereof~~ period up to ~~grant) to Purchaser at Closing a temporary license~~ and ~~right to use~~ including the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Proration Date and ~~shall expire on the day which is one hundred eighty~~ (~~180~~iii) ~~days subsequent~~ finally, any balance then remaining to ~~the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date~~Purchaser. ~~During such period, Purchaser shall have~~ Seller retains the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts pursue its remedies against tenants after Closing for any delinquent payments or other ~~documents~~amounts owed to Seller, except for actions or proceedings affecting possession or landlord liens. However, Seller will not exercise any such rights or remedies unless such amounts have not been collected by Purchaser and paid to Seller within three (3) months after such amounts were due and payable to Seller. Any money due to Seller under Section 5.2 or this Section 5.3 shall ~~not use~~ be remitted to Seller within fifteen (15) days after the ~~existing trade name~~ end of each month in ~~responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller~~which Purchaser receives such money. ~~(b) The~~ 5.4 Operating expenses, including, without limitation, any prepaid expenses such as permits, licenses and membership dues, shall be prorated between Purchaser and Seller ~~stipulates that there is full and adequate consideration for~~ based upon the ~~license herein granted~~actual days of their respective ownership of the Property utilizing the actual expenses or reasonable estimates. ~~(c) Purchaser~~ 5.5 Real estate taxes shall ~~make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can~~ be ~~replaced in due course and within the license period specified above. In the event~~ prorated on a cash basis, meaning that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right real estate tax bills actually paid or to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and be paid in the ~~event that Seller decides to place such a listing and/or advertisement, Seller~~ year of Closing shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire apportioned based on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.the

Appears in 1 contract

Samples: Purchase and Sale Agreement (Resource Real Estate Opportunity REIT II, Inc.)

Prorations. ~~13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to~~ 15.1 Water and ~~assumed by Purchaser and credited to Purchaser at Closing)~~other utility charges; fuels; prepaid operating expenses~~; management fees in the amount of 6% of prorated rents credited to Purchaser~~; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' ~~liability~~liabilities, if any, for such items); operating expenses paid by Seller which are reimbursable by the tenants for the period prior to the Closing ~~Date~~ Date, less any amount previously paid by the ~~tenants shall be credited~~ tenants; unpaid operating expenses for the period prior to ~~Seller~~the Closing Date prorated on a "net" basis, as set forth above; and all other ~~similar~~ items of expense and income shall be adjusted ratably as of ~~11:59 p.m.~~ 12:01 a.m. on the Closing Date ("Proration Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business"), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be ~~reimbursed at Closing~~ entitled to a credit for ~~any~~ all transferable utility deposits ~~which the Seller has deposited with any~~ transferred hereunder, if any, and all other utility ~~company and which will~~ deposits, if any, may be ~~assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to~~ withdrawn by 15.2 All basic rent paid following the Closing Date ~~shall be paid~~ by ~~Purchaser. If the amount of~~ any tenant of the ~~items to be prorated~~ Property who is ~~not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations~~ indebted under ~~the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to~~ a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible Lease for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent basic rent ~~attributable to a tenant's occupancy of a portion of the Real Property~~ for any period prior to the ~~date~~ Proration Date in an amount greater than the amount of ~~Closing, free from any claim thereon~~ all current basic rent owed by ~~the Seller. Seller may use whatever lawful means are available~~ said tenant to ~~Seller to collect any delinquencies up to and~~ Purchaser shall be deemed a "Post-Closing Receipt" until the ~~day prior~~ earlier to occur of (i) one year after the Closing Date, ~~provided that~~ or (ii) such time as all such indebtedness is paid in full. Within ten (10) days following the end of each calendar month, Purchaser shall pay to Seller Post-Closing Receipts collected in the previous month. Purchaser shall use its reasonable, good faith efforts, at no additional cost or expense to Purchaser, to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 30 days after the one-year anniversary of the Closing Date, upon the written request of Seller, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first year after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not ~~agree~~ previously delivered to ~~reduce rents for~~ Seller in accordance with the terms hereof. Purchaser shall provide Seller with any ~~period~~ information reasonably necessary to verify the accuracy of ~~time after~~ the Post-Closing ~~in order~~ Receipts reconciliation statement and upon the verification of additional funds owing to ~~induce any tenants~~ Seller, Purchaser shall pay to ~~pay delinquent rents~~Seller said additional Post-Closing Receipts. Purchaser's obligations to attempt to collect Post- Closing Receipts shall expire one year from the Closing Date. Seller shall ~~not have~~ retain the right ~~subsequent~~ to ~~Closing~~ sue any tenant for rent owed to ~~seek (by legal action or otherwise) the collection of any rents delinquent~~ Xxxler for any period prior to ~~Closing unless~~ the ~~tenant has vacated the premises under the pertinent Lease before~~ Proration Date. This Paragraph 15.2 of this Agreement shall survive the Closing ~~Date~~ and ~~said Lease is not assigned to~~ the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as delivery and recording of the ~~Closing Date~~Deed. ~~13.3. To the extent it is reasonably possible for the~~ 15.3 Seller covenants to ~~do so~~operate, ~~the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license~~ maintain and ~~right to use the logos currently used by~~ manage the Property ~~which are~~ in the ~~property of an Affiliate~~ same manner that it has managed, maintained and operated the Property during the period of Seller's ownership, ~~in place advertising, telephone directory listings~~ subject to reasonable wear and ~~advertisements,~~ tear and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Sellercasualty. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Sale Agreement (Balcor Pension Investors V)

Prorations. ~~13.1. Rents~~ (~~exclusive of delinquent rents~~a) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the “Proration Time”), the following (collectively, the “Proration Items”): (i) Rents, in accordance with Subsection 10.4(b) below. (ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon. (iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and ~~credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas~~ a per diem adjustment shall be ~~prorated at~~ made for the days between the meter reading date and the Closing Date based on the most recent ~~ascertainable data~~meter reading. (iv) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. (v) Such other items of income and expense as are typically prorated at closing similar to the transaction contemplated by this Agreement. Seller ~~shall pay at Closing the bills therefor~~ will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the ~~Closing~~Proration Time, and ~~the~~ Purchaser ~~shall pay the utility bills therefor~~ will be charged and credited for all ~~periods subsequent thereto~~of the Proration Items relating to the period after the Proration Time. ~~If the utility company will not issue separate bills, the~~ The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser ~~shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities~~ two (~~so long as no more than thirty (30~~2) days ~~in advance in~~ prior to the ~~ordinary course of business~~Closing Date (the “Closing Statement”). The Closing Statement, ~~then Purchaser~~ once agreed upon, shall be ~~charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly~~ signed by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the ~~amount of any~~ actual amounts of the ~~items to be prorated is~~ Proration Items are not ~~then ascertainable~~known as of the Closing Date, the ~~adjustments thereof shall~~ prorations will be made at Closing on the basis of the ~~most recent ascertainable data. The Purchaser shall assume Seller's obligations under~~ best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion basis of the ~~real estate tax liability~~ actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller’s insurance policies will not be ~~pro-rated~~ assigned to Purchaser. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Date~~. All costs associated with telephone directory listings and any other prepaid advertisements shall~~ , in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers, but Seller will, if necessary, maintain such ~~prorations; provided, however, that~~ deposits until such ~~prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago~~ time ~~on the day which is~~ as Purchaser can post its own deposits (but in no event longer than thirty (30) days ~~following~~ after Closing~~, at which time all prorations shall~~ ) so that such utility service will not be ~~deemed final and not subject~~ discontinued to ~~further post-closing adjustment~~the Property. The provisions of ~~the preceding sentence shall~~ this Section 10.4(a) will survive the ~~Closing~~Closing for twelve (12) months. ~~13.2. Rents which are delinquent~~ (b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing ~~Date shall not be prorated~~and attributable to any period following the Proration Time. ~~Instead~~“Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include Tenant’s share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent ~~that Purchaser is able to collect said delinquencies~~the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenant under the ~~Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion~~ Lease or from other occupants or users of the ~~Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller~~Property. ~~Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day~~ Rental is “Delinquent” when it was due prior to the Closing Date, ~~provided that Seller shall~~ and payment thereof has not ~~agree~~ been made on or before the Proration Time. Delinquent Rental will not be prorated. Purchaser agrees to ~~reduce rents for any period of time after Closing in order~~ use good faith collection procedures with respect to ~~induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise)~~ the collection of any ~~rents delinquent~~ Delinquent Rental, but Purchaser will have no liability for the failure to collect any ~~period prior~~ such amounts and will not be required to ~~Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned~~ pursue legal action to ~~the Purchaser. Furthermore, the Seller shall not have the right to retain any portion~~ enforce collection of any ~~security deposit held~~ such amounts owed to Seller by ~~Seller~~ Tenant. All sums collected by Purchaser from and after Closing from Tenant (~~if any~~excluding tenant specific xxxxxxxx for tenant work orders and other specific services as described in and governed by Section 10.4(d) ~~with respect~~ below) will be applied first to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) current amounts owed by such Tenant to Purchaser ~~at Closing a temporary license~~ and ~~right~~ then to ~~use the logos currently used~~ delinquencies owed by ~~the Property which are the property of an Affiliate of~~ such Tenant to Seller~~, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant~~ . Any sums due Seller will be promptly remitted to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)

Prorations. ~~13.1~~6.7.1. ~~Rents (exclusive of delinquent~~ Rexx xxxxxxxy taxes, assessments, rents, ~~but including prepaid rents); prepaid associations dues, refundable~~ security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Datedeposits, and ~~credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas~~ cam expenses shall be prorated ~~at Closing based on the most recent ascertainable data~~through Escrow between Buyer and Seller as of Close of Escrow. ~~Seller shall pay at Closing the bills therefor for the period to~~ Rents, security deposits and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser cam expenses shall be ~~charged its portion~~ approved by Buyer prior to Close of ~~such payment at Closing~~Escrow. ~~No proration~~ Any delinquent rents collected by Buyer shall be ~~made for utility expenses that are separately metered~~ paid to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to ~~use~~ pursue any Tenant for delinquent rent, but shall not cause a Tenant to be delinquent for their current rent or become financially unstable. Tax and assessment prorations shall be based on the ~~existing logos~~latest available tax bill. If, ~~in place advertising~~after Close of Escrow, ~~telephone directory listings and advertisements~~Buyer receives any further or supplemental tax bill relating to any period prior to Close of Escrow, xx Xeller receives any further or supplemental tax bill relating to any period after Close of Escrow, the xxxipient shall promptly deliver a copy of such tax bill to the other party, and ~~telephone numbers~~not later than ten (10) dxxx prior to the delinquency date shown on such tax bill Buyer and Seller shall deliver to the taxing authxxxxy their respective shares of such tax bill, prorated as of Close of Escrow. 6.7.2. Xxl leasing commissions owing and tenant improvements with respect to ~~each~~ the Property ~~without additional compensation~~ transactions entered into prior to ~~the Seller except as set forth in Paragraph 13.1 herein. Purchaser~~ execution of this Agreement shall ~~not use the existing logos or trade name on stationery, business cards, contracts or other documents~~be paid by Seller, and Seller shall ~~not use~~ indemnify and hold Buyer harmless for Lease commission claims brought against the ~~existing trade name in responding to oral inquiries regarding the Properties except to identify a~~ Property ~~as formerly owned by the Seller. (b) The Seller stipulates that there is full~~ arising therefrom. All leasing commissions for new Leases and ~~adequate consideration~~ for ~~the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings~~ Lease renewals and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs expansion options executed after the date ~~hereof but~~ of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear to the primary term of the new Lease. 6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the ~~Closing Date, Purchaser shall have~~ date of closing and which are in any way related to the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publicationProperty, and ~~in the event that Seller decides~~ all expenses related thereto, including but not limited to ~~place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing~~court costs and attorneys' fees. ~~(d) In the event~~ 6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by third ~~party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising~~ parties and based on events occurring subsequent to the ~~Closing Date, then Purchaser shall be responsible to pay same subsequent~~ date of closing and which are in any way related to the ~~Closing Date (~~Property, and all expenses related thereto, including, but ~~no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)~~not limited to, court costs and attorneys' fees. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (NNN 2003 Value Fund LLC)

Prorations. ~~13.1. Rents (exclusive~~ For the purpose of ~~delinquent rents~~this Section 7.5, ~~but including prepaid rents); prepaid associations dues~~all references to Transferor shall mean collectively Transferor and each of the Record Title Holders. 7.5.1 Rentals, ~~refundable security deposits (which will be assigned to~~ revenues, and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilityother income, if any, from the Property, taxes, assessments, improvement bonds, service or other contract fees, utility costs, and other expenses affecting the Property shall be prorated between Transferee and Transferor as of the Closing Date; provided, however, that Transferor shall receive a credit at the Closing in an amount equal to the rentals that are delinquent as of the Closing Date, but only to the extent that such delinquent rentals are due and owing from Tenants occupying a portion of the Property on the Closing Date; and provided further, that Transferee shall be entitled to any and all payments subsequently received in satisfaction of such delinquent rentals, notwithstanding the fact that such rentals are attributable to a period prior to Closing. For purposes of calculating prorations, Transferee shall be deemed to be title holder of the Property, and therefore entitled to the income and responsible for the expenses, after 12:01 a.m. on the Closing Date. After the Closing, Transferor shall have no right to proceed in any manner or make any claim against Tenants for rents that were delinquent as of the Closing Date, except to the extent that any such ~~items); operating expenses which are reimbursable~~ person no longer occupies any portion of the Property. All non-delinquent real estate taxes or assessments on the Property shall be prorated based on the actual current tax xxxx, but if such tax xxxx has not yet been received by Transferor by the ~~tenants~~ Closing Date or if supplemental taxes are assessed after the Closing for the period prior to the ~~Closing Date less~~ Closing, the parties shall make any ~~amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on~~ necessary adjustment after the Closing ~~Date, and credited~~ by cash payment to the ~~balance of the cash due at Closing. Utilities~~party entitled thereto so that Transferor shall have borne all real property taxes, including ~~water~~all supplemental taxes, ~~sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for~~ allocable to the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing ~~Date~~ and ~~Purchaser~~ Transferee shall ~~be responsible for any costs associated therewith arising~~ bear all real property taxes, including all supplemental taxes, allocable to the period from and after the ~~Closing Date~~Closing. ~~All prorations described in this Agreement (except prorations for real~~ If any expenses attributable to the Property and ~~personal property taxes which shall be deemed final as prorated on~~ allocable to the period prior to the Closing ~~Date)~~ are discovered or billed after the Closing, the parties shall ~~be subject~~ make any necessary adjustment after the Closing by cash payment to ~~post-closing adjustments as necessary~~ the party entitled thereto so that Transferor shall have borne all expenses allocable to ~~reflect later relevant information not available at~~ the period prior to the Closing and Transferee shall bear all expenses allocable to ~~correct any errors made at~~ the ~~Closing with respect to such prorations; provided, however, that such prorations shall be deemed final~~ period from and ~~not subject to further post-closing adjustments at 5:00 PM Chicago time on~~ after the ~~day which is thirty (30) days following~~ Closing~~, at which time all prorations shall be deemed final and not subject to further post-closing adjustment~~. The provisions of ~~the preceding sentence~~ this Section 7.5 shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period 7.5.2 Fifteen (15) Business Days prior to the ~~date of~~ Closing, ~~free from any claim thereon by the Seller. Seller may use whatever lawful means are available~~ Escrow Agent shall deliver to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the ~~Properties~~ parties for their review and approval a preliminary closing statement (the "PRELIMINARY CLOSING STATEMENT") setting forth (i) the proration amounts allocable to each of the parties pursuant to ~~the following terms and conditions: (a) The temporary license granted by~~ this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.Section

Appears in 1 contract

Samples: Acquisition and Contribution Agreement (Apartment Investment & Management Co)

Prorations. ~~13.1. Rents (exclusive~~ The following items shall be prorated between Seller and Purchaser as of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in midnight of the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to day immediately preceding the Closing Date ~~less any amount previously paid by the tenants shall be~~ (as defined below) (with Purchaser being charged or credited ~~to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on~~ for the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities as applicable): (~~so long as no more than thirty (30~~i) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be ~~reimbursed at Closing~~ responsible for ~~any utility deposits which~~ the ~~Seller has deposited with any utility company~~ payment of all general real estate, personal property and ~~which will be assigned~~ ad valorem taxes due and payable prior to ~~the Purchaser at~~ Closing. ~~Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable~~general real estate, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered personal property and ~~the extent to which they are able to achieve a reduction in the real estate~~ ad valorem taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so on an accrual basis such that Seller shall ~~be responsible~~ pay for ~~any costs associated therewith~~ all such taxes that become due and payable prior to the Closing Date, and shall provide a credit to Purchaser (based on One Hundred Five percent (105%) of the total of the taxes calculated using the most recent available assessed value, tax rate and equalization factor) for all such taxes that are attributable to the period prior to the Closing Date but which are not yet due or payable, and Purchaser shall ~~be responsible for any costs associated therewith arising~~ pay all such taxes that become due and payable from and after the Closing Date. ~~All~~ Tax prorations ~~described in this Agreement (except prorations for real and personal property taxes which~~ shall be ~~deemed~~ final as ~~prorated on~~ of Closing. (ii) All charges for gas, electricity, sewer, trash, telephone, water and other utilities serving the Property shall be read and terminated as of midnight of the day prior to Closing whereupon Seller shall be responsible for and shall pay for all such charges first accruing or relating to the period prior to the Closing Date. (iii) Both paid and unpaid charges under the Surviving Service Contracts (if any), including any one-time or bonus payments under any cable or telecommunications contracts. (iv) Unless expressly provided otherwise herein, such other items that are customary prorated in a purchase and sale of the type contemplated hereunder shall be ~~subject to post-closing adjustments~~ prorated as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on of midnight of the day ~~which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the~~ immediately preceding ~~sentence shall survive~~ the Closing. ~~13.2. Rents which are delinquent~~ (v) All amounts payable, owing or incurred in connection with the Property shall be prorated as of the Closing ~~Date shall not be prorated~~Date. ~~Instead,~~ All sums due for such accounts payable which are attributable to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the ~~date of Closing~~Closing Date will be paid by Seller, ~~free from any claim thereon by~~ or if Seller has not received the ~~Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day~~ bill or invoice therefor, or has received but not paid such bill or invoice, prior to the Closing Date, ~~provided that~~ at Purchaser’s election, Purchaser will either (i) furnish to Seller ~~shall not agree to reduce rents for any period of time~~ such bills or invoices received after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date ~~and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held~~ for payment by Seller (~~if any~~and Seller shall pay all other such bills or invoices received but not paid prior to Closing) and Purchaser will have no further obligation with respect thereto, or (ii) pay such bill or invoice on behalf of Seller and be entitled to ~~any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the~~ reimbursement thereof by Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Sellerdemand. (bvi) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller All prorations shall be ~~entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such~~ final, except as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise ~~owed by the Seller to said third party). (e) Purchaser's temporary license set forth~~ expressly provided in this ~~paragraph shall expire on the date(s~~Section 10(a) ~~set forth~~ above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Zoned Properties, Inc.)

Prorations. ~~13.1. Rents~~ (~~exclusive of delinquent~~ a) Rents, including, without limitation, percentage rents, ~~but including prepaid rents~~and all other income from the operation of the Property, if any, and any additional charges and expenses payable by tenants under Leases, and assessments and charges payable to and collectable by the owner of the Property under the Property Declarations, all as and when actually collected; real property taxes (based on Title Company estimates, in the event that real property taxes for the year of Closing are not fully ascertained as of the Closing Date) and assessments (on a cash basis); ~~prepaid associations dues~~water, ~~refundable security deposits (which will~~ sewer and utility charges; and amounts payable under any Service Contracts to be ~~assigned to and~~ assumed by ~~Purchaser and credited to Purchaser~~ Buyer at Closing); ~~fuels; prepaid operating expenses; management fees~~ and any other ordinary and recurring expenses of the operation and maintenance of the Property and with respect to which Seller shall receive a credit at Closing in the amount of 6% the prepaid or unamortized portion thereof), shall all be prorated as of ~~prorated~~ 12:01 a.m. on the date of Closing (i.e., Buyer is entitled to the income and responsible for the expenses of the entire day of Closing and all subsequent periods, and Seller is entitled to the income and responsible for expenses attributable to all periods prior to the day of Closing), on the basis of a 365-day year. Buyer shall reimburse Seller for the tenant improvement costs, leasing commissions, legal fees and other expenses, and free rent and other concessions for which Buyer is responsible, as provided in Section 7.2. All rents ~~credited~~ and income collected after the Closing shall be applied and paid as provided in this ‎Section 8.5(a). Buyer shall have no obligation to ~~Purchaser; real~~ Seller to collect any such unpaid rents or other charges (but agrees to invoice same to the applicable tenant as otherwise provided below), and ~~personal property taxes prorated on a "net" basis~~ all rents and other charges collected shall be first applied to current rents and charges due, next to rents and charges past due (~~i.e. adjusted~~ in reverse order to which they become past due) for ~~all tenants' liability~~the period after the Closing Date through the then current rent period, ~~if any, for such items); operating expenses which are reimbursable by the tenants~~ and lastly to rents and charges past due for the period prior to the Closing ~~Date less any amount previously~~ Date. If a tenant shall specifically designate a payment as being attributable to, or if it is readily ascertainable that a payment received from a tenant is attributable to a specific period of time or for a specific purpose, including, without limitation, for operating expenses or real estate tax payments which were not paid or were underpaid by such tenant or for reimbursement for work performed by Seller on the ~~tenants~~ tenant’s premises, such payment shall be ~~credited to Seller; and~~ so applied provided no other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor amounts payable for the period to from and ~~including~~ after Closing are past-due. If there is no such designation or if not so readily ascertainable, any payment received from a tenant after Closing shall be deemed a payment of rent due after the Closing until the tenant is current on rents and sums due under the applicable Lease on or after the Closing, and then such payments shall be paid to Seller to the ~~Purchaser shall pay the utility bills therefor~~ extent of any rent or other sums owing to Seller for ~~all~~ periods ~~subsequent thereto~~prior to Closing. ~~If the utility company will not issue separate bills, the Purchaser shall receive~~ For a ~~credit against the Purchase Price for Seller's portion and shall pay the entire utility bill~~ period of up to ninety (90) days after Closing~~. If~~ , Buyer agrees to remit invoices prepared by Seller ~~hxx xre~~(in the name of Buyer) in order to xxxx items payable by tenant’s under Leases, but Buyer shall not be required to take any other action to collect such amounts due unless it chooses to take such action and Buyer may deduct the reasonable apportioned third-~~paid~~ party costs of collection from any such ~~utilities (so long as no more than thirty (30) days in advance in~~ amounts collected before remitting the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and balance due Seller. Seller ~~shall be reimbursed at Closing for~~ retains the right to collect any ~~utility deposits which the Seller has deposited with any utility company~~ such rents and ~~which will be assigned to the Purchaser at~~ other sums from tenants after Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that Seller shall have no right to cause any such ~~prorations~~ tenant to be evicted, to execute against the assets of such tenant required for operation in the Property, or to exercise any other landlord remedy against such tenant other than to xxx for collection. To the extent Seller collects rents and charges for Leases after the Closing Date, Seller agrees to hold all collections in trust, and to promptly turn over such collections to Buyer, and Buyer shall apply such funds between Buyer and Seller in the manner provided herein. Reconciliations of taxes, insurance charges and other expenses owed by tenants under Leases for the calendar year (or fiscal year if different from the calendar year) in which the Closing occurs shall be ~~deemed final~~ prepared by Buyer with the cooperation of Seller within 180 days following the end of such year in accordance with the requirements set forth in the Leases and as provided in this ‎Section 8.5(a). For those Leases in which tenants pay a proportionate share of taxes, insurance charges or other expenses over a base year amount or expense stop or up to an expense cap, the proration between the parties of the income received from tenants over such base year amount or expense stop or up to an expense cap shall be calculated by multiplying the total reimbursement payable by the applicable tenant (after taking into account the applicable base year, expense stop or expense cap) for such applicable billing period by a fraction the numerator of which is the total expenses incurred by the applicable party (i.e. Seller or Buyer, as applicable) with respect to its applicable period of ownership with respect to such applicable billing items (to which such base year, expense stop or expense cap apply, but without regard to the amount of any base year, expense stop or expense cap amounts), and the denominator of which is the total amount of such expenses for the Property incurred by both Seller and Buyer combined for the entire calendar (or, if applicable, fiscal) year within such billing period and billing items and otherwise in accordance with this ‎Section 8.5(a) (and after taking into account any estimated payments of rent actually collected by Seller and Buyer respectively for their respective period of ownership). By way of illustration but without limiting the foregoing, if: (i) the Closing occurs on June 1, 2016, (ii) during Seller’s period of ownership of the Property during the year 2016 (151 days), Seller incurred expenses of $450,000, (iii) during Buyer’s period of ownership of the Property during the year 2016 (214 days), Buyer incurred expenses of $500,000, (iv) total expenses for such year recovered from tenants under Leases is 33 $400,000 (e.g., $950,000 total expenses minus a total base year amount of $550,000), then Seller would be entitled to $165,479.45 of such income ($400,000/365 days = $1,095.89 per diem multiplied by 151 days) and Buyer would be entitled to $234,520.55 of such income ($1,095.89 per diem multiplied by 214 days), regardless of the actual amount of expenses actually incurred by each party (which would have instead resulted in Seller receiving $189,473.68 of such income and Buyer receiving $210,526.32 of such income). For Leases which do not have a base year amount or expense stop or expense cap on expense reimbursements, the proration between the parties of income received from tenants from reconciliations of expenses under the Leases shall be calculated by multiplying the total reimbursable expenses for each tenant by a fraction the numerator of which is the total expenses incurred by the applicable party (i.e. Seller or Buyer, as applicable) with respect to its applicable period of ownership with respect to such applicable billing items, and the denominator of which is the total amount of such expenses for the Property incurred by both Seller and Buyer combined for the entire calendar (or, if applicable, fiscal) year within such billing period and billing items and otherwise in accordance with this Section 8.5(a) (and after taking into account any estimated payments of rent actually collected by Seller and Buyer respectively for their respective period of ownership). If any Lease is in effect for less than an entire year, then such proration and calculation of expense shall only be with respect to the applicable billing period under the applicable Lease. Notwithstanding the above, (i) any amounts of rent or additional rent due to or from tenants with respect to Leases terminated before the Date of Closing shall be the sole obligation/benefit of Seller, and (ii) any amounts of rent or additional rent due to or from tenants with respect to Leases for which rent first commences on or after the date of Closing shall be the sole obligation/benefit of Buyer and shall not be subject to proration or adjustment under the above provisions. All adjustments set forth above shall be calculated on a tenant by tenant basis. In calculating prorations, no expenses shall be included within the numerator or denominator unless such expenses are reimbursable under the applicable Lease without giving effect to any lease provisions creating a base year, expense stop or expense cap with respect to the total amount of such expenses that are reimbursable to landlord. Notwithstanding anything herein to the contrary, except as provided in the second sentence of this paragraph, Seller shall be solely responsible, at Seller's sole cost and expense, for all tenant reimbursements, payments, credits and reconciliations due tenants for the period prior to Closing based on funds collected by Seller prior to Closing (and for all reconciliation periods prior to the current reconciliation period in which the Closing Date occurs, as applicable), whether such amounts are determined to be due as a result of an audit exercisable by a tenant under a Lease that is exercised after Closing or otherwise, and Seller shall indemnify and defend and hold Buyer harmless from and against all costs, expenses, liabilities and credits that may be due or become due to tenants attributable to any such prior periods (and for all reconciliation periods which ended prior to the Closing Date). In the event any tenants are due reimbursements, payments, credits or reconciliations attributable to such prior periods prior to Closing and such credits are known to and not ~~subject~~ disputed at Closing by Seller, Buyer shall receive a credit at Closing against the Purchase Price in the amount of such outstanding reimbursements, payments, credits or reconciliations due tenants and Buyer shall be responsible for paying same due tenants to ~~further post~~the extent, but only to the extent, of the credit given Buyer by Seller hereunder at Closing. This provision shall survive Closing without limitation as to time. The amount of any cash security deposits and pre-~~closing adjustments~~ paid rents attributable to periods following the Closing, if any, held by Seller under Leases shall be credited against the Purchase Price (and Seller shall be entitled to retain such cash security deposits and such pre-paid rent). Seller will use commercially reasonable efforts (including payment of any reasonable issuer fees not otherwise payable by the applicable tenant) to cause any letters of credit held as security deposits to be transferred to, or reissued in, the name of Buyer at ~~5:00 PM Chicago~~ Closing. With respect to any such letters of credit held as security deposits that are not so transferred or reissued into the name of Buyer as of Closing, Seller shall continue to hold such letters of credit on behalf of Buyer and shall act as lawfully directed by Buyer following Closing with respect to any such letters of credit; provided, however, that Buyer shall defend, indemnify and hold harmless Seller from and against any and all claims, losses, damages, costs, expenses, obligations and liabilities (including, without limitation, court costs and reasonable attorneys’ fees and disbursements) incurred by Seller arising out of any action taken by Seller with respect to any such letter of credit in accordance with instructions as Buyer may direct. Seller shall receive credits at Closing for the amount of any utility or other deposits with respect to the Property to the extent such accounts are transferred to Buyer and Buyer receives the benefit of same. Buyer and Seller shall cooperate to cause all utilities to be transferred into Buyer’s name and account, or, at the option of either party, to cause Seller’s existing accounts to be closed and to cause a new account to be opened in Buyer’s name, at the time of or immediately upon Closing in which event Seller shall be entitled to any refunds of any such utility or other deposits. Notwithstanding any provision above to the contrary, utility charges (including, but not limited to, water rates and sewer charges or rentals), if metered shall not be apportioned at Closing, but Seller shall cause all utility meters to be read not more than two (2) days before Closing Date, and Seller agrees to pay promptly after receipt all utility bills and charges accruing up to and including the day preceding the Closing Date and Buyer agrees to pay all charges from and after Closing. Seller and Buyer hereby agree that if any of the aforesaid prorations and credits are based on estimates, or cannot be calculated accurately on the ~~day which is~~ Closing Date, or in the case of rents or other charges received from tenants or other assessments due to or payable by the owner of the Property under the Property Declarations, such amount have not been collected, then the same shall be calculated as soon as reasonably practicable after the Closing Date, or the date actual amounts or known, or the date such amounts have been collected, as applicable, and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall pay said sum to the other party within thirty (30) days ~~following Closing~~thereafter. Any amounts not paid within such thirty (30) days after written demand by the other party (or any other amount due by one party to the other for the period after Closing under this Agreement not paid within thirty (30) days after demand by the party to who payment is owed) shall bear interest from the date actually received by the payor until paid at the greater of (i) the rate of ten percent (10%) per annum or (ii) the prime rate (or base rate) reported from time to time in the “Money Rates” column or section of The Wall Street Journal as being the base rate on corporate loans at larger United States money center commercial banks plus two (2) percent. Upon request of either party, at the parties shall provide a detailed and accurate written statement signed by such party certifying as to the payments received by such party from tenants or third parties under the Property Declarations (but subject to proration hereunder) prior to or from and after Closing and to the manner in which ~~time all prorations~~ such payments were applied, and shall make their books and records available for inspection by the other party during ordinary business hours upon reasonable advance notice. (b) All title charges (including survey coverage and other endorsements and reinsurance charges to the Title Policy and the lender’s title policy, but excluding the basic premium for the Title Policy), survey costs and recording fees shall be ~~deemed final~~ paid by Buyer at Closing. Seller shall be responsible for the basic premium for the Title Policy. Any escrow or closing fees shall be split equally between Seller and ~~not subject~~ Buyer. The parties will execute and deliver any required transfer or other similar tax declarations to ~~further post-closing adjustment.~~ the appropriate governmental entity at Closing. (c) Any percentage rent received in the year in which Closing occurs shall be prorated based upon the number of days of Seller’s and Buyer’s respective ownership of the Property, regardless of whether such sales occur during the portion of the lease year allocable to Seller’s and Buyer’s respective ownership of the Property. (d) The provisions of ~~the preceding sentence~~ this Section 8.5 shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Whitestone REIT)

Prorations. ~~13.1~~(a) The Parties will each execute and deliver to Escrow Agent for the Closing a closing statement setting forth the Purchase Price and all closing credits, prorations, charges, costs and adjustments contemplated by this Agreement. ~~Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which~~ All prorations will be ~~assigned~~ calculated as of the Closing Date by Escrow Agent, based upon the latest available information, with income and expense for the Closing Date being allocated to ~~and assumed~~ Buyer. Buyer will receive a credit for any rent paid or payable by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants Tenant for the period ~~prior to~~ beginning with and including the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to through and including the ~~Closing,~~ last day of the month in which Closing occurs. All other credits and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion charges to Buyer and ~~shall pay the entire utility bill after Closing. If~~ Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be ~~assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be~~ similarly prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. Real estate taxes and assessments, if not the sole responsibility of Tenant under the Lease, will be prorated on an accrual basis and, if actual amounts are not available, will be based upon the current valuation and latest available tax rates or assessments. All ~~costs associated with telephone directory listings~~ pre-paid or abated rents or deposit amounts (including any tax or expense escrows and any security deposits) held by Seller under the Lease, if any, will be paid to Buyer in the form of a credit against the Purchase Price. Seller will timely perform any tax or expense reconciliations that may be required under the Lease to the extent applicable to Seller’s period of ownership. If after Closing either Party receives any rents or other ~~prepaid advertisements shall~~ amounts that properly belong to the other Party based upon the Closing prorations, such amounts will be ~~prorated as of~~ immediately remitted to such other Party. (b) If after Closing either Party discovers any errors, or receives additional information, indicating that the prorations were inaccurate, such Party will promptly notify the other and the Parties will correctly re-prorate the amounts in question. No such correction will be required later than twelve (12) months after the Closing Date ~~so that Seller shall be responsible for any costs associated therewith~~ unless prior to such date the ~~Closing Date~~ Party seeking the correction has given a written notice to the other Party specifying the nature and ~~Purchaser shall be responsible~~ basis for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such ~~prorations~~correction; provided, however, that if a correction is sought because current tax or assessment bills for the Property were not available as of Closing, the correction period with respect to the closing proration of such ~~prorations shall be deemed final and not subject to further post~~taxes or assessments will if needed continue beyond such 12-~~closing adjustments at 5:00 PM Chicago time on the day which is~~ month period until thirty (30) days ~~following Closing~~after Buyer’s receipt of the applicable bills. In the event of any re-proration under this Section, ~~at which time all prorations shall~~ the Party owing funds will within thirty (30) days after determination remit to the other Party the amount shown to be ~~deemed final and not subject to further post-closing adjustment~~due. The provisions of ~~the preceding sentence~~ this Section 12 shall survive ~~the~~ Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Cole Office & Industrial REIT (CCIT III), Inc.)

Prorations. ~~13.1~~All rents and other income from the Property, including any initial lump sum or disproportionate payments which shall be allocable over the term of any agreement to which such payments relate, and real estate and personal property ad valorem taxes, and other operating expenses from the Property shall be prorated on the basis of a 365 day year through the day preceding the day of Closing. ~~Rents~~ If Closing is extended by mutual agreement, all adjustments shall be made as of the day prior to the extended date. Without limitation upon the foregoing, the following items shall be adjusted or prorated between Contributor and OP as set forth below: (~~exclusive~~ a) Monthly rents and percentage rent and "passthroughs" of real estate taxes and operating expenses due from occupancy tenants under Tenant Leases, as and when collected. If at Closing there are any past due rents or charges owed by occupancy tenants, they shall not be prorated until received; OP shall include such delinquencies in its normal billing and shall pursue the collection thereof in good faith after the Closing Date (but OP shall not be required to litigate or declare a default in any Tenant Lease). To the extent OP receives amounts on account of Tenant Leases on or after the Closing Date, such payments shall be applied first toward then current rent owed to OP in connection with the applicable Tenant Lease for which such payments are received, and any excess monies received shall be applied toward the payment of any delinquent rents, with Contributor's share thereof being promptly delivered to Contributor. OP may not waive any delinquent rents nor modify a Tenant Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Contributor is entitled to receive its share of charges or amounts without first obtaining Contributor's written consent. Contributor hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to Contributor. OP shall reasonably cooperate with Contributor in any collection efforts hereunder (but ~~including prepaid rents~~shall not be require to litigate or declare a default in any Lease)~~; prepaid associations dues~~. With respect to delinquent rents and any other amounts or other rights of any kind respecting tenants who are no longer tenants of the Property as of the Closing Date, ~~refundable security deposits~~ Contributor shall retain all rights relating thereto. (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real b) Real estate and personal property taxes and any special assessments, taking into consideration discounts for the earliest permitted payment, based upon the latest previous tax levies. Such items shall be reapportioned between Contributor and OP if current tax rates differ from the latest previous tax rates as soon as the same are known. Contributor agrees that to the extent any additional taxes, assessments or levies are imposed, assessed or levied against the Property, or any portion thereof, the Contributor or the OP at any time subsequent to Closing but with reference to any period prior thereto during Contributor's ownership thereof, Contributor shall promptly pay to OP an amount equal to such additional assessments or levies. Similarly, if tax refunds become payable for periods during Contributor's ownership of the Property, such amounts (subject to adjustments for the potential claims of occupancy tenants that paid tax increases by way of rent escalations to Contributor) shall be promptly paid over to Contributor. In the event that any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with OP assuming the obligation to pay any installment due after the Closing Date). In no event shall Contributor be charged with or be responsible for any increase in the taxes on the Property resulting from the sale of the Property or from any improvements made or lease entered into on or after the Closing Date. (c) Interest with respect to all indebtedness or liabilities which will be a ~~"net" basis~~ credit to the Consideration to be paid by OP for the contribution of the Property by Contributor; (~~i.e. adjusted for all tenants' liability~~d) Transferable annual permits, licenses, and/or inspection fees, if any, ~~for~~ on the basis of the duration of the same; (e) Security Deposits, plus accrued interest, if any, payable thereon to tenants, and any other deposits and prepaid rent, shall be credited (or assigned) to OP; (f) Utility charges levied against Contributor or the Property, and OP shall transfer all such ~~items); operating expenses which are reimbursable by~~ utility services to its name and account immediately upon Closing; (g) Service Contracts on the ~~tenants~~ basis of the charge or premium for the period ~~prior to~~ involved; (h) Tenant improvements costs and leasing commissions for leases signed after the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Effective Date shall be paid by ~~Purchaser~~OP if approved by OP in accordance with Section 4.3. (i) All other operating expenses incurred in the management and operation of the Property. If No insurance policies shall be assigned hereunder, and accordingly there shall be no proration of insurance premiums. Notwithstanding anything to the ~~amount~~ contrary contained in this Agreement, the provisions of this Section 6.2 shall survive Closing. Any prorations of any ~~of the items~~ kind described in this Agreement payable by Contributor to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) OP shall be treated as a ~~portion~~ reduction in the amount of the ~~real estate tax liability~~ Distribution Loan Proceeds that are distributed to Contributor under Section 1.2(d). Any such prorations payable by OP to Contributor shall be ~~pro-rated as~~ funded by an increase in the amount of the ~~Closing Date. All costs associated with telephone directory listings~~ Distribution Loan and ~~any other prepaid advertisements shall be prorated as of~~ the ~~Closing Date so~~ proceeds thereof that ~~Seller shall be responsible for any costs associated therewith prior~~ are distributed to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing DateContributor under Section 1.2(d) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysAgreement. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Contribution Agreement (Arden Realty Inc)

Prorations. ~~13.1. Rents~~ (~~exclusive of delinquent rents~~a) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately preceding the Closing ~~Date~~Date (the “Closing Time”), the following (collectively, the “Proration Items”): real estate and personal property taxes and assessments for the year in which Closing occurs, utility bills (except as hereinafter provided), collected Rentals (subject to the terms of (b) below) and operating expenses payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period up to and including the ~~Closing~~Closing Time, and ~~the~~ Purchaser ~~shall pay the utility bills therefor~~ will be charged and credited for all ~~periods subsequent thereto~~of the Proration Items relating to the period after the Closing Time. ~~If the utility company will~~ Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities be unreasonably withheld) two (~~so long as no more than thirty (30~~2) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent prior to the Closing Date (the “Closing Statement”). The Closing Statement, 37 once agreed upon, shall be signed by Purchaser and Seller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the ~~amount of any~~ actual amounts of the ~~items to be prorated is~~ Proration Items are not ~~then ascertainable~~known as of the Closing Time, the ~~adjustments thereof shall~~ prorations will be made at Closing on the basis of the ~~most recent ascertainable data~~best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. ~~The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect~~ No prorations will be made in relation to insurance premiums (except to the ~~Properties~~extent covered by the proration of Operating Expense Recoveries), ~~i.e., those agreements which Seller has entered into with firms who are entitled~~ and Seller’s insurance policies will not be assigned to ~~a commission based on services rendered~~ Purchaser. Final readings and ~~the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (~~final xxxxxxxx for utilities will be made if ~~any) shall be treated as a portion of the real estate tax liability to be pro-rated~~ possible as of the Closing ~~Date. All costs associated with telephone directory listings and any other prepaid advertisements shall~~ Time, in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to ~~such prorations; provided~~utility bills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, ~~however, that such prorations~~ and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. A final reconciliation of Proration Items shall be ~~deemed final~~ made by Purchaser and ~~not subject to further post-closing adjustments at 5:00 PM Chicago time~~ Seller on or before the last day ~~which is thirty~~ of the Survival Period (~~30) days following Closing~~herein, ~~at which time all prorations shall be deemed final and not subject to further post-closing adjustment~~the “Final Proration Date”). The provisions of ~~the preceding sentence shall~~ this Section 10.4 (excluding subsection (e) which is governed by Section 3.2 above), will survive the ~~Closing~~Closing until the Final Proration Date, and in the event any items subject to proration hereunder are discovered prior to the Final Proration Date, the same shall be promptly prorated by the parties in accordance with the terms of this Section 10.4. ~~13.2. Rents which are delinquent~~ (b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Closing ~~Date shall~~ Time) of all Rentals previously paid to and collected by Seller and attributable to any period following the Closing Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rentals, if any, received by Seller after Closing and properly attributable to any period following the Closing Time. “Rentals” includes fixed monthly rentals, parking rentals and charges, additional rentals, percentage rentals, escalation rentals (which include such Tenant’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, to the extent the same exceeds any expense stop specified in such Tenant Lease), retroactive rentals, administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable to Seller under the Tenant Lease or from other occupants or users of the Property, excluding specific tenant xxxxxxxx which are governed by Section 10.4(d). Rentals are “Delinquent” if they were due prior to the Closing Time and payment thereof has not been made on or before the Closing Time. Delinquent Rentals will not be prorated. ~~Instead, to~~ Until the ~~extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion~~ end of the ~~Real Property for any period prior~~ Survival Period, Purchaser agrees to ~~the date of Closing, free from any claim thereon by the Seller. Seller may~~ use ~~whatever lawful means are available~~ good faith collection procedures with respect to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any ~~rents delinquent~~ Delinquent Rentals, but Purchaser will have no liability for the failure to collect any ~~period prior~~ such amounts and will not be required to ~~Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned~~ conduct lock-outs or take any other legal action to ~~the Purchaser. Furthermore, the Seller shall not have the right to retain any portion~~ enforce collection of any ~~security deposit held~~ such amounts owed to Seller by ~~Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as~~ Tenants of the ~~Closing Date. 13.3~~Property. ~~To the extent it is reasonably possible for the~~ Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to ~~use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with~~ pursue Delinquent Rentals after Closing. With respect to ~~each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein.~~ any Delinquent Rentals received 38 by Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing DateSurvival Period, Purchaser shall ~~have~~ pay to Seller any rent or payment actually collected during the ~~right~~ Survival Period properly attributable to ~~place a listing and/or advertisement~~ the period prior to the Closing Time. All sums collected by Purchaser during the Survival Period, from such Tenant (excluding Tenant payments for Operating Expense Recoveries attributable to the period prior to the Closing Time and tenant specific xxxxxxxx for tenant work orders and other specific services as described in and governed by Section 10.4(d) below, all of which shall be payable to and belong to Seller in all events, notwithstanding anything herein to the contrary) will be applied first to amounts currently owed by such ~~publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list~~ Tenant to Purchaser (including Delinquent Rentals attributable to the ~~Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in~~ period after the Closing Time), then any collection costs of Purchaser related to such ~~publication~~Tenant, and ~~in the event that Seller decides~~ then to ~~place such a listing and/or advertisement,~~ prior delinquencies owed by Tenant to Seller. Seller shall be entitled to ~~a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable~~ institute legal actions to ~~the period~~ pursue Delinquent Rental after Closing, but in no event shall Seller be permitted to institute eviction proceedings against any Tenant. Any sums collected by Purchaser and due to Seller will be promptly remitted to Seller, and any sums collected by Seller and due to Purchaser will be promptly remitted to Purchaser. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Sale Agreement (Hines Global REIT, Inc.)

Prorations. ~~13.1. Rents~~ 5.2.1 Rentals from Leases (~~exclusive of delinquent rents~~including fixed monthly rentals and other periodic rentals, ~~but including~~ additional rentals, percentage rentals, operating cost pass-throughs and other sums and charges payable by the tenants), prepaid ~~rents);~~ rentals and prepaid ~~associations dues~~payments (collectively, ~~refundable~~ “Rent”) shall, subject to the further provisions hereof, be prorated on the basis that Buyer shall receive a credit for all security deposits ~~(which will be assigned to~~ actually held by Seller and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all ~~tenants' liability, if any,~~ Rent which Seller has actually received before the Closing which is allocable to the period after the Closing. Seller shall not receive a credit for ~~such items); operating expenses which are reimbursable by~~ any Rent Seller has not received as of the ~~tenants for~~ Closing that is allocable to the period prior to the ~~Closing Date less~~ Closing. If Buyer shall collect any ~~amount previously paid by~~ such Rent (including without limitation percentage rent) after the ~~tenants~~ Closing, Buyer shall ~~be credited~~ promptly pay the same to Seller~~; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date~~, ~~and credited to the balance~~ after application of the ~~cash~~ same to any rent due at from the applicable Tenant after the Closing~~. Utilities, including water, sewer, electric, and gas~~ . 5.2.2 Real estate taxes shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as ~~no more than thirty (30) days in advance in the ordinary course~~ of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing ~~Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be~~ on the basis of the most recent ~~ascertainable data~~assessed valuation of and rates and multiplier applicable to the Property. ~~The Purchaser~~ If prorations are not made on the basis of the current tax year or if supplemental taxes are assessed after the Closing for the period prior to the Closing, the parties shall ~~assume Seller's obligations under~~ make any necessary adjustment after Closing by cash payment upon demand to the ~~Seller's existing real estate tax consulting agreements~~ party entitled thereto so that Seller shall have borne all taxes allocable to the period prior to the Closing (including all supplemental taxes which are allocable to the period prior to Closing) and Buyer shall bear all taxes allocable to the period after the Closing (including all supplemental taxes which arc allocable to the period after the Closing). 5.2.3 Seller shall endeavor to have all of its utility accounts with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated Property closed out effective as of the Closing Date~~. All costs associated with telephone directory listings and any other prepaid advertisements~~ ; if such close-out is not possible, utilities shall be prorated as of the Closing (with the assumption that utility charges were uniformly incurred during the billing period in which the Closing occurs). 5.2.4 Common area and maintenance charges, property taxes, insurance and other operating cost pass-throughs payable by Tenants which accrue as of the Closing Date, but which are not then due and payable (collectively, the “Operating Expenses”), shall not be prorated, except as herein provided. Buyer shall receive and retain any Operating Expenses paid by Tenants on or after the Closing Date ~~so that~~ and Seller shall ~~be responsible for~~ receive and retain any ~~costs associated therewith~~ Operating Expenses paid by Tenants prior to the Closing ~~Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing~~ Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that ~~such prorations shall be deemed final and not subject~~ any monthly or periodic deposits or payments of estimated Operating Expenses with respect to ~~further post-closing adjustments at 5:00 PM Chicago time~~ the month in which the Closing occurs received by Seller prior to the Closing Date or by Buyer on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of or after the Closing Date shall ~~not~~ be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent prorated as of the Closing Date~~. 13.3~~. ~~To the extent it is reasonably possible for the Seller to do so, the~~ Buyer and Seller shall ~~grant (or shall arrange for the owner thereof~~ prorate at Closing, actual Operating Expenses collected by Seller from Tenants prior to ~~grant)~~ Closing with actual Operating Expenses paid by Seller with respect to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, ~~Purchaser~~ so that if there are any rebates owing to Tenants for the period of Seller’s ownership, Seller shall ~~have~~ pay Buyer the ~~right to use the existing logos, in place advertising, telephone directory listings and advertisements~~amount of such rebates at Closing, and ~~telephone numbers,~~ if the Tenants owe the landlord any additional amounts for Operating Expenses with respect to ~~each Property without additional compensation~~ the period of Seller’s ownership, Buyer shall promptly pay Seller the amount so owed to the ~~Seller except as set forth in Paragraph 13.1 herein~~landlord upon Buyer’s receipt of the same (and Buyer shall exert diligent good faith efforts to collect the same). Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller Any prorations under this Agreement based upon monthly amounts shall be ~~entitled to~~ based upon a ~~pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.~~ thirty (d30) ~~In the event~~ day month; any ~~third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser~~ prorations under this Agreement based upon annual amounts shall be ~~responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute~~ based upon a ~~credit against a debt otherwise owed by the Seller to said third party)~~366 day year. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)

Prorations. ~~13.1. Rents (exclusive of delinquent rents~~All payments under or pursuant to the Assumed Leases, ~~but including prepaid rents); prepaid associations dues~~the Assumed Furniture and Equipment Leases and the Assumed Contracts relating to periods prior to the Closing Date, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes ~~prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by~~ related to the ~~tenants for the period~~ Assets relating to periods prior to the Closing ~~Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on~~ Date, whether or not payable after the Closing Date, ~~and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas~~ shall be prorated ~~at Closing based~~ between Purchaser and Sellers, as the case may be, on the ~~most recent ascertainable data. Seller~~ basis of a 365-day year (except with regard to taxes, which shall ~~pay at Closing~~ be prorated on the ~~bills therefor for~~ basis of the ~~period to and including the Closing,~~ applicable tax year) and the number of days elapsed as of the Closing Date. With respect to any products sold (or services rendered) pursuant to the Assumed Contracts and Assumed Furniture and Equipment Leases, Sellers and Purchaser shall ~~pay~~ use reasonable, commercial efforts to arrange for vendors to bill Sellers directly through the ~~utility bills therefor for all periods subsequent thereto~~Closing Xxxx xxx Xxxchaser directly after the Closing Date. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts Notwithstanding anything to the ~~Purchaser's address~~contrary contained in this Agreement or any other Operative Document, ~~if such a procedure is possible and convenient and mutually acceptable~~ amounts due for Supplies received by or services rendered by third party vendors to ~~Purchaser and Seller.~~ any Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent prior to the Closing Date shall be for the account of and paid by ~~Purchaser~~Sellers. ~~If the amount of any of the items to be prorated is not then ascertainable~~Sellers shall, ~~the adjustments thereof shall be~~ on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, ~~provided that Seller shall not agree to reduce rents for~~ cure any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises and all defaults under the ~~pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore~~Assumed Contracts, the ~~Seller shall not have~~ Assumed Leases and the ~~right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing~~Assumed Furniture and Equipment Leases, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are required to be cured under the ~~property of an Affiliate of Seller~~Bankruptcy Code, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all of the Assumed Contracts, the Assumed Leases and the Assumed Furniture and Equipment Leases may be assumed by Sellers and assigned to Purchaser in accordance with Section 365 of the Bankruptcy Code, and so that Purchaser will have no obligations for defaults existing ~~telephone directory listings and advertisements and signs can be replaced in due course and within~~ prior to the ~~license period specified above~~assignment. In the event ~~that~~ the ~~publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement~~ Closing occurs after ~~the date hereof but before the Closing Date~~June 1, 1999, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publicationreimburse Sellers for out-of-pocket expenses incurred by Sellers after May 31, ~~and in the event that Seller decides to place such a listing and/or advertisement~~1999, ~~Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable~~ to the ~~period after Closing~~extent that such expenses are incurred in a manner that is consistent with the Approved Budget. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Asset Purchase Agreement (United Companies Financial Corp)

Prorations. ~~13.1. Rents~~ At each Closing, the following shall be apportioned and adjusted between each Contributor, on the one hand, and the New Company, on the other hand, as of 11:59 p.m. (~~exclusive~~ Eastern Standard Time) as of ~~delinquent rents~~the last day of the calendar month immediately preceding the month in which the applicable Closing occurs (the “Prorations Date”), ~~but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned~~ with the Contributor responsible for matters relating to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants its Contributed Properties for the period prior to the ~~Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing~~ Prorations Date, and ~~credited~~ the New Company responsible for matters relating to such Contributed Properties from and after the Prorations Date, except as otherwise specified: (a) rents and additional rents under or in respect of Tenant Leases, as, when and to the ~~balance~~ extent actually collected, on the basis of the ~~cash due at Closing. Utilities~~period for which payable under the applicable Tenant Lease and apportioned on the basis of the actual number of days in such period, ~~including water~~along with security, ~~sewer~~pet, ~~electric~~key and any other deposits held by the landlord under the Tenant Leases; (b) any real property taxes, water and sewer rents and charges; any tax credit or refund collected as a result of any real property tax appeal; vault taxes or charges, elevator inspection charges and other like and similar municipal taxes and charges, each on the basis of the fiscal year or other period for which assessed, and ~~gas~~ apportioned upon the basis of the actual number of days in such year or period. If actual tax bills are not available, taxes shall be ~~prorated at Closing~~ apportioned based on the most recent ~~ascertainable data. Seller shall pay at~~ tax bills available, with a post-Closing ~~the~~ adjustment to be made as soon as tax bills ~~therefor~~ for the ~~period~~ fiscal year during which the Closing occurs become available; (c) subject to Section 4.5, electric, gas, steam and ~~including the Closing, and the Purchaser shall pay the~~ other public utility ~~bills therefor~~ charges for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts services furnished to the ~~Purchaser's address~~Contributed Properties, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the ~~most recent ascertainable data~~actual number of days in any period covered by the charge being apportioned (except that no apportionment shall be made for any of such items as are furnished and charged by the applicable utility company directly to tenants under the Tenant Leases); (d) all charges under the Contracts, on the basis of the actual number of days in any period covered by the charge being apportioned. The ~~Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements~~ Tarragon Contributors with respect to the Tarragon Properties, ~~i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered~~ and the ~~extent to which they are able to achieve a reduction in the real estate taxes otherwise payable~~ Northland Contributors with respect to the ~~Properties. The fees~~ Northland Properties shall bear the cost of all installments or ~~commissions~~ amounts of items which are being apportioned under this Section which became due and payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the ~~Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing~~ Prorations Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).and (e) ~~Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent~~ such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysContributed Properties. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement to Contribute (Tarragon Corp)

Prorations. ~~13.1~~It is acknowledged that the Lessee, as lessee under the Property Lease, shall continue to operate the Property from and after Closing and, pursuant to said Property Lease, shall be entitled to all revenues generated from, and shall be obligated to pay all taxes and expenses (including all rental due under the Ground Lease) relating to, the Property from and after Closing and during the entire term of the Property Lease (subject, however, to payment of the various rentals otherwise described in said Property Lease). ~~Rents (exclusive~~ As a result of ~~delinquent rents~~the foregoing, ~~but including prepaid rents); prepaid associations dues~~there shall be no proration, ~~refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser~~ at Closing~~); fuels; prepaid operating expenses; management fees in the amount~~ , of ~~6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability~~any revenue, ~~if any~~tax or expense items hereunder. However, for ~~such items); operating expenses which are reimbursable by~~ purposes of determining "Additional Rent" due and owing under the ~~tenants~~ Property Lease for the ~~period prior to~~ year in which the Closing Date ~~less any amount previously paid~~ (i.e., the "Commencement Date" under the Property Lease) occurs, the parties agree as follows: (a) All revenue received by ~~the tenants shall be credited~~ Seller that relates to ~~Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on~~ time periods after the Closing Date, including, but not limited to, deposits, advance registration and ~~credited~~ other fees previously received by Seller, rents, membership dues, initiation fees, prepaid greens fees, coupon book receipts, gift certificates, discount certificates, locker rentals, tournament fees, tradeouts, function deposits, and bag storage charges, shall be deemed "Golf Course Revenue" or "Other Revenue" (as the case may be) under the Property Lease, attributable to periods following the Commencement Date of the Property Lease term on an accrual basis in accordance with generally accepted accounting principles. (b) All of Seller's receivables, unreceived revenue and deferred income relating to the ~~balance~~ operation of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith Property prior to the Closing Date and ~~Purchaser~~ not otherwise provided for in this Section 10.2 or elsewhere in this Agreement, shall remain the property of Seller ("SELLER'S RECEIVABLES") and shall not be ~~responsible for~~ deemed "Golf Course Revenue" or "Other Revenue" under the Property Lease attributable to any ~~costs associated therewith arising from and after~~ period falling within the term of the Property Lease. It is acknowledged that the Lessee, as lessee under the Property Lease, shall continue to attempt to collect Seller's Receivables following the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; providedRegardless of payee designation, ~~however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days~~ all payments received following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date by the Lessee, as lessee under the Property Lease, from any club member who has an outstanding Seller's Receivables shall ~~not~~ be ~~prorated. Instead,~~ presumed to be payments in respect to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently ~~used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements~~due charges, and ~~telephone numbers, at each of the Properties pursuant~~ thereafter to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the outstanding Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's ~~sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and~~ Receivables in the ~~event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion~~ inverse order of ~~the cost of such listing and/or advertisement attributable to the period after Closing~~maturity. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Contribution Agreement (Presidio Golf Trust)

Prorations. ~~13.1. Rents (exclusive~~ 5.4.1 The following shall be prorated between Seller and Purchaser as of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated 12:01 a.m. on ~~a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to~~ the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the ~~most recent ascertainable data. The Purchaser shall assume Seller's obligations under~~ actual number of days elapsed over the ~~Seller's existing~~ applicable period): (a) All real estate ~~tax consulting agreements with respect to~~ taxes, water charges, sewer rents, vault charges and assessments on the ~~Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based~~ Property on ~~services rendered and~~ the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion basis of the ~~real estate tax liability to~~ fiscal year for which assessed. In no event shall Seller be ~~pro-rated as of the Closing Date. All costs associated~~ charged with ~~telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall~~ or be responsible for any ~~costs associated therewith prior to~~ increase in the ~~Closing Date and Purchaser shall be responsible for~~ taxes on the Property resulting from the sale of the Property or from any ~~costs associated therewith arising from and~~ improvements made or leases entered into on or after the Closing Date. ~~All prorations described~~ If any assessments on the Property are payable in ~~this Agreement (except prorations~~ installments, then the installment for ~~real and personal property taxes which~~ the current period shall be ~~deemed final~~ prorated (with Purchaser assuming the obligation to pay any installments due after the Closing Date). (b) Subject to this Section 5.4.1(b), all fixed rent and regularly scheduled items of additional rent under the Leases entered into pursuant to Section 7.2.3, and other tenant charges if, as ~~prorated~~ and when received. Seller shall deliver or provide a credit in an amount equal to all prepaid rentals for periods after the Closing Date and all refundable cash security deposits (to the extent the foregoing were made by tenants under the Leases and are not applied or forfeited prior to the Closing Date) to Purchaser on the Closing Date) . Seller shall ~~be subject~~ deliver to ~~post-closing adjustments as necessary to reflect later relevant information not available~~ Purchaser at Closing any security deposits which are held in the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions form of ~~the preceding sentence shall survive the Closing. 13.2~~letters of credit. Rents which are delinquent as of the Closing Date shall not be ~~prorated~~prorated on the Closing Date. ~~Instead,~~ Purchaser shall include such delinquencies in its normal billing and shall diligently pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Lease). To the extent ~~that~~ Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to receives rents within one hundred twenty (120) days after the Closing Date, ~~provided~~ such payments shall be applied first toward the rents for the month in which the Closing occurs, second to the rents for the month preceding the month in which the Closing occurs, third to any delinquent rents owed to Seller, with Seller's share thereof being held by Purchaser in trust for Seller and promptly delivered to Seller by Purchaser and fourth to the rents that shall then be due and payable to Purchaser, Purchaser may not waive any delinquent rents nor modify a Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive a share of charges or amounts without first obtaining Seller's written consent, which consent may be given or withheld in Seller's sole and absolute discretion. After such one hundred and twenty (120) day period, Seller shall not ~~agree~~ be entitled to ~~reduce~~ any further rents ~~for any period of time after Closing in order to induce any tenants to pay delinquent rents~~collected by Purchaser. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have hereby reserves the right to ~~retain~~ pursue any ~~portion~~ remedy against any tenant owing delinquent rents and any other amounts to Seller (but shall not be entitled to terminate any lease or any tenant's right to possession), which right shall include the right to continue or commence legal actions or proceedings against any tenant. Delivery of the Assignment and Assumption of Leases shall not constitute a waiver by Seller of such right, and such right shall survive the Closing. Purchaser shall reasonably cooperate with Seller in any collection efforts hereunder (but shall not be required to litigate or declare a default under any Lease). With respect to delinquent rents and any other amounts or other rights of any ~~security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though~~ kind respecting tenants who are no longer tenants of the ~~tenant is delinquent in paying rent~~ Property as of the Closing Date, Seller shall retain all rights relating thereto. ~~13.3. To~~ (c) All operating expenses. (d) Intentionally deleted. (e) Charges and payments under Contracts or permitted renewals or replacements thereof assigned to Purchaser pursuant to the ~~extent it is reasonably possible~~ Assignment and Assumption of Contracts. (f) Any prepaid items, including, without limitation, fees for ~~the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant)~~ licenses which are transferred to Purchaser at the Closing ~~a temporary license~~ and ~~right~~ annual permit and inspection fees. (g) Utilities, including, without limitation, telephone, steam, electricity and gas, on the basis of the most recently issued bills therefor, subject to ~~use~~ adjustment after the ~~logos currently used by~~ Closing when the next bills are available, or if current meter readings are available, on the basis of such readings. (h) Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if the same are assigned to Purchaser at the Closing, which ~~are~~ shall be credited in their entirety to Seller. (i) Personal property taxes, if any, on the ~~property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each~~ basis of the ~~Properties~~ fiscal year for which assessed. (j) Permitted administrative charges, if any, on those tenants' security deposits transferred by Seller pursuant to the ~~following terms~~ Assignment and ~~conditions:~~Assumption of Leases. (k) Taxes payable by Seller relating to operations of the Property, including, without limitation, business and occupancy taxes and sales taxes, if any. (l) Such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the Property and located in the State of California subject to Section 7.2.3(a) hereof. (a) ~~The temporary license granted by this paragraph~~ Seller shall ~~commence~~ be given a credit for any payments Seller shall have made as of the Closing Date, in good faith and in the ordinary course of business, in respect of the capital expenditures described on Exhibit H attached hereto and made a part hereof. Purchaser shall assume all liability for such capital expenditures as of the Closing. (b) If any of the items described in Section 5.4.1 hereof cannot be apportioned at the Closing because of the unavailability of information as to the amounts which are to be apportioned or otherwise, or are incorrectly apportioned at Closing or subsequent thereto, such items shall be apportioned or reapportioned, as the case may be, as soon as practicable after the Closing Date ~~and shall expire on the day which is one hundred eighty (180) days subsequent to~~ or the date ~~when~~ such error is discovered, as applicable; provided that, with the ~~public telephone directory pertaining~~ exception of any item required to ~~each Property is published subsequent~~ be apportioned pursuant to ~~the Closing Date. During such period~~Section 5.4.1(a), ~~Purchaser~~ (b) or (g), neither party shall have the right to ~~use~~ request apportionment or reapportionment of any such item at any time following the ~~existing logos~~one hundred eightieth (180th) day after the Closing Date. If the Closing shall occur before a real estate or personal property tax rate or assessment is fixed for the tax year in which the Closing occurs, ~~in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation~~ the apportionment of taxes at the Closing shall be upon the basis of the tax rate or assessment for the preceding fiscal year applied to the ~~Seller except as set forth~~ latest assessed valuation. Promptly after the new tax rate or assessment is fixed, the apportionment of taxes or assessments shall be recomputed and any discrepancy resulting from such recomputation and any errors or omissions in ~~Paragraph 13.1 herein. Purchaser~~ computing apportionments at Closing shall ~~not use~~ be promptly corrected and the ~~existing logos or trade name on stationery~~proper party reimbursed, ~~business cards, contracts or other documents, and~~ which obligations shall ~~not use~~ survive the ~~existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller~~Closing. ~~(b) The~~ 5.4.3 Items to be prorated at the Closing shall include a credit to Seller ~~stipulates that there is full~~ for costs and ~~adequate consideration for the license herein granted. (c) Purchaser shall make arrangements~~ expenses incurred by Seller in connection with ~~the pertinent telephone companies so that all~~ any new Leases or modifications to any existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs Leases entered into after the date hereof ~~but before~~ in accordance with the ~~Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost~~ terms and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license conditions set forth in ~~this paragraph shall expire on the date(s~~Section 7.2.3(a) ~~set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date~~ of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysAgreement. ~~(f) If Purchaser continues to use said logos or trade names beyond~~ 5.4.4 The provisions of this Section 5.4 shall survive the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such lawsClosing.

Appears in 1 contract

Samples: Contract of Sale (Sports Arenas Inc)

Prorations. ~~13.1. Rents~~ (~~exclusive~~ a) For purposes of ~~delinquent rents~~determining the Purchase Price, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property ~~taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability~~and real property Taxes, ~~if any~~fees with respect to any Transferable Permits, ~~for such items); operating expenses~~ rents under any leases of real or personal property, or other similar expenses, that are not due or assessed until after the Effective Time but which are ~~reimbursable by the tenants for the~~ attributable in whole or in part to any period commencing prior to the ~~Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date~~Effective Time, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other ~~prepaid advertisements shall~~ amounts that by the terms of this Agreement are to be allocated between the Parties, will be prorated as of the ~~Closing Date so that~~ Effective Time, with Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, liable to the extent ~~that Purchaser is able~~ such items relate to ~~collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for~~ any period prior to the ~~date of Closing~~Effective Time, ~~free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to~~ and ~~until the day prior~~ Buyer liable to the ~~Closing Date~~extent such items relate to any period from and after the Effective Time. If the actual amounts to be prorated are not known, ~~provided that~~ Seller shall ~~not agree to reduce rents for any period of time after~~ include an itemized estimate in the Closing ~~in order to induce any tenants to pay delinquent rents. Seller~~ Adjustment Statement based upon the most recent available rates, assessments, valuations, or other data, and the Parties shall ~~not have~~ adjust the ~~right subsequent to~~ amounts paid at Closing to ~~seek (by legal action or otherwise) the collection~~ reflect such prorations. Any prorations shall be made so as to avoid duplication of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisementsamounts, and ~~telephone numbers, at each of~~ will be adjusted to properly take into account any amounts thereof used in determining the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the SellerPurchase Price. (b) The proration of all items under this Section 3.4 will be recalculated by Buyer within a reasonable period of time following the date upon which the actual amounts become available to Buyer. Buyer will notify Seller ~~stipulates that there is full~~ of such recalculated amounts, and ~~adequate consideration for~~ will provide Seller with all documentation relating to such recalculations, including tax statements and other notices from third parties. The Parties will make such payments to each other as are necessary to reconcile any estimated amounts prorated as of the ~~license herein granted. (c) Purchaser shall make arrangements~~ Effective Time with the ~~pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can~~ final amounts to be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone numberprorated. Seller and Xxxxx agree to furnish each other with such documents and other records as may ~~also place a listing and/or advertisement~~ be reasonably requested in ~~such publication, and in the event that Seller decides~~ order to ~~place such a listing and/or advertisement, Seller shall be entitled~~ confirm all proration calculations made pursuant to ~~a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing~~this Section 3.4. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Asset Purchase Agreement

Prorations. ~~13.1~~12.1. Rents (exclusive of delinquent rents, but including prepaid rents); ~~prepaid associations dues,~~ refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; accrued but unpaid interest on the Notes; fuels; prepaid operating expenses; ~~management fees in the amount of 6% of prorated rents credited to Purchaser;~~ real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellertaxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to against the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. ~~The~~ In addition, Purchaser shall ~~assume Seller's obligations~~ give Seller a credit at Closing for all escrows, reserves and holdbacks, held by the Lender under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing DateLoan Documents. All ~~costs associated with telephone directory listings and any other prepaid advertisements shall~~ prorations will be ~~prorated~~ final except as of to delinquent rent referred to in Paragraph 12.2 below. 12.2. All basic rent paid following the Closing Date ~~so that Seller shall be responsible for~~ by any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions tenant of the ~~preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser~~ Property who is ~~able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent~~ indebted under a lease for rent ~~attributable to a tenant's occupancy of a portion of the Real Property~~ for any period prior to ~~the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to~~ and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before including the Closing Date ~~and said Lease is not assigned to~~ after the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) payment to Purchaser at of all current rent shall be deemed a "Post-Closing ~~a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller,~~ Receipt" until such time as all such indebtedness is paid in ~~place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:~~ full. Within ten (~~a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180~~10) days ~~subsequent to the date when the public telephone directory pertaining to~~ following each ~~Property is published subsequent to the~~ receipt by Purchaser of a Post-Closing ~~Date. During such period~~Receipt, Purchaser shall ~~have the right~~ pay such Post-Closing Receipt to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinSeller. Purchaser shall ~~not~~ use ~~the existing logos or trade name on stationery~~its best efforts to collect all amounts which, ~~business cards~~upon collection, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovewould constitute Post-Closing Receipts hereunder. ~~In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs~~ Within 120 days after ~~the date hereof but before~~ the Closing Date, Purchaser shall ~~have~~ deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to ~~place a listing and/or advertisement in such publication~~ conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's ~~sole cost~~ books and ~~expense. Such listing and/or advertisement may list~~ records to verify the ~~Purchaser's name~~ accuracy of the Post-Closing Receipts reconciliation statement and ~~telephone number.~~ upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller ~~may also place a listing and/or advertisement in such publication,~~ said additional Post-Closing Receipts and ~~in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of~~ the cost of ~~such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use~~ performing Seller's audit. Paragraph 12.2 of ~~such listings or advertising subsequent to~~ this Agreement shall survive the Closing ~~Date, then Purchaser shall be responsible to pay same subsequent to~~ and the ~~Closing Date (but no such payment shall accrue to the benefit~~ delivery and recording of the ~~Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)~~deed. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale (Balcor Realty Investors 85 Series Ii)

Prorations. ~~13.1. Rents~~ (~~exclusive~~ a) Subject to the provisions of ~~delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits~~ Exhibit E hereto the following shall be apportioned with respect to the Property: (~~which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in~~ i) real property taxes affecting the ~~amount of 6% of prorated rents credited to Purchaser; real~~ Realty and personal property taxes ~~prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by~~ affecting the ~~tenants~~ Personalty for the ~~period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably~~ then current year, as of ~~11:59 p.m. on~~ the ~~Closing Date, and credited to the balance~~ date of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any ~~such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion~~ apportionment of such ~~payment at Closing. No proration shall~~ taxes with respect to a tax year for which either the tax rate or assessed valuation or both have not yet been fixed to be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on upon the basis of the ~~most recent ascertainable data. The~~ tax rate and/or assessed valuation last fixed; provided that Seller and Purchaser ~~shall assume Seller's obligations~~ agree that to the extent the actual taxes for the current year differ from the amount so apportioned at Closing, Seller and Purchaser will make all necessary adjustments by appropriate payments between themselves following Closing, such obligation to survive Closing; (ii) current expenses under the ~~Seller's existing real estate tax consulting agreements with respect to the Properties~~Operating Agreements; and (iii) gas, ~~i.e.~~electricity, ~~those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered~~ water, trash disposal and ~~the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants~~ other utility charges. (~~if any~~b) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and In making such apportionments, Purchaser shall be responsible for ~~any costs associated therewith arising~~ real property taxes and other expenses accrued or incurred from and after the ~~Closing Date~~date of Closing. All ~~prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date)~~ such apportionments shall be subject to post-~~closing~~ Closing adjustments as necessary to reflect later relevant information not available at ~~the~~ Closing and to correct any errors made at ~~the~~ Closing with respect to such ~~prorations~~apportionments and the party receiving more than it was entitled to hereunder shall reimburse the other party hereto in the amount of such overpayment within thirty (30) days after receiving written demand therefor; ~~provided~~provided that the party hereto receiving such notice has received sufficient evidence to verify the amount of such overpayment. In the event such party has not received sufficient evidence to verify the amount of overpayment, ~~however~~such party shall be afforded additional time to verify and/or dispute the amount of overpayment, ~~that~~ but in no event longer than thirty (30) days after the notice. Notwithstanding the foregoing, such ~~prorations~~ apportionments shall be deemed final and not subject to further post-~~closing~~ Closing adjustments ~~at 5:00 PM Chicago time on the day which is thirty~~ if no such adjustments have been requested after a period of sixty (3060) days ~~following Closing, at which time all prorations~~ after the Closing Date. All other matters with respect to apportionments shall be ~~deemed final and not subject to further post-closing adjustment~~governed by the Closing Memorandum. The provisions of ~~the preceding sentence~~ this Section 4.4(b) shall survive ~~the~~ Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) ~~Purchaser~~ Governmental assessments against the Realty shall ~~make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can~~ not be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof prorated, but ~~before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in~~ such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller assessments shall be ~~entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company~~ paid in full by Seller at or ~~billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent~~ prior to the Closing Date ~~(but no~~ if the work for which assessment was made has been fully performed, or assumed and paid by Purchaser if such ~~payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed~~ work has not been fully performed by the ~~Seller to said third party)~~Closing Date. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Dendrite International Inc)

Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior Notwithstanding anything to the ~~Closing Date less any amount previously paid by the tenants shall be credited to Seller;~~ contrary contained in this Agreement, all rent, additional rent, real estate taxes, common area maintenance and other ~~similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date~~charges, insurance obligations and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments charges payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements Acquired Leases shall be prorated as of the Final Closing Date ~~so that Seller~~ for each Acquired Lease. Sellers agree to prorate real estate taxes and assessments based on when such taxes and assessments accrue, notwithstanding when such taxes and assessments become a lien on the premises leased by an Acquired Leases. All percentage rent based on sales payable under an Acquired Lease for the fiscal period in which the Final Closing Date for such Acquired Lease occurs shall be ~~responsible for any costs associated therewith prior to~~ the ~~Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after~~ responsibility of the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; Sellers, provided, however, if Buyer opens for business from the applicable Store in the fiscal period in which the percentage rent is calculated, then percentage rent based on sales shall be prorated based upon the ratio that sales made at such Store for which percentage rents are calculated prior to the applicable Final Closing Date bears to the aggregate sales made for the relevant fiscal period for which percentage rents are computed. The Sellers shall reasonably cooperate with Buyer in providing documents required under the Acquired Leases in order to comply with percentage rent reporting requirements. The Sellers and Buyer agree to adjust between themselves after the applicable Final Closing any errors, reconciliations, or omissions in the prorations or adjustment set forth in the closing statements and any other prorations or adjustment made pursuant to this Agreement. Notwithstanding anything contained herein to the contrary, such apportionments shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed adjustments have been requested within ninety (90) ~~additional days~~days after such time as all necessary information is available to make a complete and accurate determination of such apportionments. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Asset Purchase Agreement (Fao Inc)

Prorations. ~~13.1. Rents~~ (~~exclusive of delinquent rents~~a) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately preceding the Closing ~~Date~~Date (the “Closing Time”), the following (collectively, the “Proration Items”) real estate and personal property taxes and assessments for the year in which Closing occurs, utility bills (except as hereinafter provided), collected Rentals (subject to the terms of paragraph (b) below) and operating expenses payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period up to and including the ~~Closing~~Closing Time, and ~~the~~ Purchaser ~~shall pay the utility bills therefor~~ will be charged and credited for all ~~periods subsequent thereto~~of the Proration Items relating to the period after the Closing Time. ~~If the utility company will~~ Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities be unreasonably withheld) two (~~so long as no more than thirty (30~~2) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the ~~amount of any~~ actual amounts of the ~~items to be prorated is~~ Proration Items are not ~~then ascertainable~~known as of the Closing Time, the ~~adjustments thereof shall~~ prorations will be made at Closing on the basis of the ~~most recent ascertainable data~~best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. ~~The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect~~ No prorations will be made in relation to insurance premiums (except to the ~~Properties~~extent covered by the proration of Operating Expense Recoveries), ~~i.e., those agreements which Seller has entered into with firms who are entitled~~ and Seller’s insurance policies will not be assigned to ~~a commission based on services rendered~~ Purchaser. Final readings and ~~the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (~~final xxxxxxxx for utilities will be made if ~~any) shall be treated as a portion of the real estate tax liability to be pro-rated~~ possible as of the Closing ~~Date. All costs associated with telephone directory listings and any other prepaid advertisements shall~~ Time, in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to ~~such prorations~~utility bills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. A final reconciliation of Proration Items shall be made by Purchaser and Seller on or before August 31, 2016 (herein, the “Final Proration Date”); ~~provided, however,~~ provided that such ~~prorations~~ reconciliation, as it relates to real estate taxes shall be ~~deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is~~ made within thirty (30) days following ~~Closing, at which time all prorations shall be deemed final~~ the issuance of the 2016 tax bills for the Real Property and ~~not subject to further post-closing adjustment~~the Improvements. The provisions of ~~the preceding sentence shall~~ this Section 10.4 (excluding subsection (e) which is governed by Section 3.2 above), will survive the ~~Closing~~Closing until Final Proration Date, and in the event any items subject to proration hereunder are discovered prior to Final Proration Date, the same shall be promptly prorated by the parties in accordance with the terms of this Section 10.4. ~~13.2. Rents which are delinquent~~ (b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Closing ~~Date shall not~~ Time) of all Rentals previously paid to and collected by Seller and attributable to any period following the Closing Time. After the Closing, Seller will cause to be ~~prorated~~paid or turned over to Purchaser all Rentals, if any, received by Seller after Closing and properly attributable to any period following the Closing Time. ~~Instead~~“Rentals” includes fixed monthly rentals, parking rentals and charges, additional rentals, percentage rentals, escalation rentals (which include such Tenant’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, to the extent ~~that Purchaser is able~~ the same exceeds any expense stop specified in such Tenant Lease), retroactive rentals, administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable to ~~collect said delinquencies,~~ the ~~Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion~~ landlord under the Tenant Lease or from other occupants or users of the ~~Real Property for any period prior to the date of Closing~~Property, ~~free from any claim thereon~~ 36 excluding specific tenant xxxxxxxx which are governed by ~~the Seller~~Section 10.4(d). ~~Seller may use whatever lawful means~~ Rentals are ~~available to Seller to collect any delinquencies up to and until the day~~ “Delinquent” if they were due prior to the Closing ~~Date, provided that Seller~~ Time and payment thereof has not been made on or before the Closing Time. Delinquent Rentals will not be prorated and shall not ~~agree~~ include, but shall exclude, any amounts of Operating Expense Recoveries paid by Purchaser to ~~reduce rents for any~~ Seller pursuant to Section 10.4(d). For a period of ~~time~~ three (3) months after ~~Closing in order~~ Closing, Purchaser agrees to ~~induce~~ include on any ~~tenants~~ rental invoices provided by Purchaser to ~~pay delinquent rents. Seller shall~~ Tenants the amount of any Delinquent Rentals owed by such Tenants if known to or by Purchaser, but Purchaser will have no liability for the failure to collect any such amounts and will not ~~have the right subsequent~~ be required to ~~Closing~~ conduct lock-outs or take any legal or other action to ~~seek (by legal action or otherwise) the~~ enforce collection of any ~~rents delinquent for any period prior~~ such amounts owed to ~~Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the~~ Seller ~~shall not have the right to retain any portion of any security deposit held~~ by ~~Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as~~ Tenants of the ~~Closing Date. 13.3~~Property. ~~To the extent it is reasonably possible for the~~ Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to ~~use~~ pursue Delinquent Rentals after Closing including instituting legal actions, but in no event shall Seller be permitted to institute eviction proceedings against any Tenant or take any action against a Tenant which would affect such Tenant’s right to occupy the ~~existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with~~ premises demised under its Tenant Lease. With respect to ~~each Property without additional compensation to~~ any Delinquent Rentals received by Purchaser within six (6) months after Closing (the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date“Delinquent Rental Proration Period”), Purchaser shall ~~have~~ pay to Seller any rent or payment actually collected during the ~~right~~ Delinquent Rental Proration Period properly attributable to ~~place a listing and/or advertisement~~ the period prior to the Closing Time. All sums collected by Purchaser during the Delinquent Rental Proration Period, from such Tenant (excluding tenant specific xxxxxxxx for tenant work orders and other specific services as described in ~~such publication at Purchaser's sole cost~~ and ~~expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication~~governed by Section 10.4(d) below, ~~and in the event that Seller decides to place such a listing and/or advertisement, Seller~~ which shall be ~~entitled~~ payable to ~~a pro-rata credit for~~ and belong to Seller in all events, notwithstanding anything herein to the contrary) will be applied first to amounts currently owed by such ~~portion of the cost of such listing and/or advertisement~~ Tenant to Purchaser (including Delinquent Rentals attributable to the period after ~~Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to~~ the Closing ~~Date~~Time), then any collection costs of Purchaser ~~shall be responsible~~ related to ~~pay same subsequent~~ such Tenant, and then to ~~the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise~~ prior delinquencies owed by ~~the~~ Tenant to Seller. Any sums collected by Purchaser and due Seller will be promptly remitted to ~~said third party)~~Seller, and any sums collected by Seller and due Purchaser will be promptly remitted to Purchaser. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)

Prorations. ~~13.1~~All revenues, income, receiv ables, costs, exxxxxxs and payables of the Property shall be apportioned equitably between the parties as of Closing on the basis of the actual number of days in a particular month, and with respect to the items enumerated below where a particular manner of apportionment is provided, then apportionment of such item shall be made in such manner. ~~Rents~~ The obligation to make apportionments shall survive Closing. Without limitation, the following items shall be so apportioned: (~~exclusive~~ i) Monthly rents and percentage rent and "passthroughs" of real estate taxes and operating expenses due from occupancy tenants under Tenant Leases, as and when collected. If at Closing there are any past due rents or charges owed by occupancy tenants, they shall not be prorated until received; Purchaser shall include such delinquencies in its normal billing and shall pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Tenant Lease). To the extent Purchaser receives amounts on account of Tenant Leases on or after the Closing Date, such payments shall be applied (except as to the lease with the County of Los Angeles) first toward then current rent owed to Purchaser in connection with the applicable Tenant Lease for which such payments are received, and any excess monies received shall be applied toward the payment of any delinquent rents, ~~but including prepaid rents); prepaid associations dues~~with Seller's share thereof being promptly delivered to Seller. With respect to the Tenant Lease with the County of Los Angeles, ~~refundable security deposits (which will be assigned to and assumed~~ however, first payments collected by Purchaser shall be delivered to Seller until all arrearages and ~~credited~~ delinquencies have been satisfied. Notwithstanding any of the foregoing, in the event that Purchaser within six (6) months after Closing alters the financial terms of any Tenant Lease of 2,500 square feet or less pursuant to which Seller is owed delinquent rents or charges, then, with respect to rents or charges under such Tenant Lease that are first received by Purchaser after the alteration of the financial terms by Purchaser, such payments shall be payable first as follows: (x) first to Seller for the delinquent rents or charges which are attributable to the two (2) month period just prior to the Closing and (y) second to Purchaser ~~at Closing); fuels; prepaid operating expenses; management fees in~~ for any then outstanding rental obligations which first become due and payable on or after the ~~amount of 6% of prorated~~ Closing and (z) third to Seller for any remaining delinquent rents ~~credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses~~ or charges which are ~~reimbursable by the tenants for~~ attributable to the period prior to the ~~Closing Date less~~ Closing. For the purpose of the preceding sentence an eviction or termination of any ~~amount previously paid by~~ tenant's occupancy is not an alteration of the ~~tenants shall be credited~~ financial terms of any Tenant Lease. Purchaser may not waive any delinquent rents nor modify a Tenant Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive its share of charges or amounts without first obtaining Seller's written consent. Seller hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to Seller; . Purchaser shall reasonably cooperate with Seller in any collection efforts hereunder (but shall not be required to litigate or declare a default in any Lease). With respect to delinquent rents and any other ~~similar items shall be adjusted ratably~~ amounts or other rights of any kind respecting tenants who are no longer tenants of the Property as of ~~11:59 p.m. on~~ the Closing Date, Seller shall retain all rights relating thereto. (ii) Real estate and ~~credited~~ personal property taxes and any special assessments, taking into consideration discounts for the earliest permitted payment, based upon the latest previous tax levies. Such items shall be reapportioned between Seller and Purchaser if current tax rates differ from the latest previous tax rates as soon as the same are known. Seller agrees that to the ~~balance~~ extent any additional taxes, assessments or levies are imposed, assessed or levied against the Property, or any portion thereof, at any time subsequent to Closing but with reference to any period prior thereto during Seller's ownership thereof, Seller shall promptly pay to Purchaser an amount equal to such additional assessments or levies applicable to such period. Similarly, if tax refunds become payable for periods during Seller's ownership of the ~~cash due at Closing~~Property, such amounts (subject to adjustments for the potential claims of occupancy tenants that paid tax increases by way of rent escalations to Seller) shall be promptly paid over to Seller. ~~Utilities~~In the event that any assessments on the Property are payable in installments, ~~including water, sewer, electric, and gas~~ then the installment for the current period shall be prorated at (with Purchaser assuming the obligation to pay any installment due after the Closing ~~based~~ Date). In no event shall Seller be charged with or be responsible for any increase in the taxes on the ~~most recent ascertainable data. Seller shall pay at~~ Property resulting from the sale of the Property or from any improvements made or leases entered into on or after the Closing ~~the bills therefor for the period to and including the Closing~~Date. (iii) Transferable annual permits, ~~and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills~~licenses, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's addressand/or inspection fees, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainableany, ~~the adjustments thereof shall be~~ on the basis of the ~~most recent ascertainable data. The Purchaser shall assume Seller's obligations under~~ duration of the ~~Seller's existing real estate tax consulting agreements with respect to the Properties~~same; (iv) Security Deposits, ~~i.e.~~plus accrued interest, those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any~~) shall be treated as a portion of the real estate tax liability~~ , payable thereon to ~~be pro-rated as of the Closing Date. All costs associated with telephone directory listings~~ tenants, and any other deposits and prepaid ~~advertisements~~ rent, shall be ~~prorated as of~~ credited (or assigned) to Purchaser; (v) Utility charges levied against Seller or the ~~Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date~~ Property, and Purchaser shall ~~be responsible~~ transfer all such utility services to its name and account immediately upon Closing; (vi) Service Contracts on the basis of the charge or premium for ~~any~~ the period involved; (vii) Tenant improvements costs ~~associated therewith arising from~~ and leasing commissions for leases, amendments and renewals signed after ~~the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which~~ January 10, 1997, shall be ~~deemed final as prorated on the Closing Date~~paid by Purchaser if approved by Purchaser in accordance with Paragraphs 7(a) ~~shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing~~ and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party7(b). (eviii) ~~Purchaser's temporary license set forth~~ All other operating expenses incurred in ~~this paragraph shall expire on~~ the ~~date(s) set forth above~~management and operation of the Property. ~~If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser~~ No insurance policies shall be ~~liable for~~ assigned hereunder, and accordingly there shall ~~pay to the owner~~ be no proration of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysinsurance premiums. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Arden Realty Inc)

Prorations. ~~13.1. Rents~~ (~~exclusive of delinquent rents~~a) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately preceding the Closing ~~Date~~Date (the “Closing Time”), the following (collectively, the “Proration Items”): real estate and personal property taxes and assessments which are required to be paid during the calendar year in which the Closing occurs (on a cash basis so that such proration pursuant to this Section 10.4(a) shall be with respect to the taxes payable in the year in which the Closing occurs and not the taxes which are attributable to such year but payable the following year), utility bills (except as hereinafter provided), collected Rentals (subject to the terms of (c) below), and operating expenses payable by the owner of the Property. Seller will be charged and credited for the amounts of all of the Proration Items relating to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period up to and including the ~~Closing~~Closing Time, and ~~the~~ Purchaser ~~shall pay the utility bills therefor~~ will be charged and credited for all ~~periods subsequent thereto~~of the Proration Items relating to the period after the Closing Time. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser Such preliminary estimated Closing prorations shall be ~~charged its portion of such payment at Closing. No proration shall~~ set forth on a preliminary closing statement to be ~~made for utility expenses that are separately metered to~~ prepared by Seller and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable submitted to Purchaser ~~and Seller. Seller~~ for Purchaser’s approval (which approval shall not be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent unreasonably withheld, delayed or conditioned) prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the ~~amount of any~~ actual amounts of the ~~items to be prorated is~~ Proration Items are not ~~then ascertainable~~known as of the Closing Time, the ~~adjustments thereof shall~~ prorations will be made at Closing on the basis of the ~~most recent ascertainable data~~best evidence then available; thereafter, when actual figures are received, or if errors in prorations are discovered, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. ~~The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect~~ No prorations will be made in relation to insurance premiums (except to the ~~Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered~~ extent covered by the proration of Operating Expenses). Final readings and ~~the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (~~final bxxxxxxx for utilities will be made if ~~any) shall be treated as a portion of the real estate tax liability to be pro-rated~~ possible as of the Closing ~~Date. All costs associated with telephone directory listings and any other prepaid advertisements shall~~ Time, in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to ~~such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty~~ utility bills (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, except to the extent ~~that Purchaser is able to collect said delinquencies,~~ covered by the ~~Purchaser shall~~ proration of Operating Expenses). Seller will be entitled to ~~receive such delinquent rent attributable~~ all deposits presently in effect with the utility providers, and Purchaser will be obligated to ~~a tenant's occupancy~~ make its own arrangements for deposits with the utility providers. A final reconciliation of ~~a portion of~~ Proration Items shall be made by Purchaser and Seller within fifteen (15) days after the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as first anniversary of the Closing Date. ~~13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant~~ (~~or shall arrange for the owner thereof to grant~~b) to Purchaser ~~at Closing~~ will receive a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence credit on the Closing ~~Date~~ Statement for the prorated amount (as of the Closing Time) of all Rentals previously paid to and ~~shall expire on~~ collected by Seller and attributable to any period following the ~~day~~ Closing Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rentals, if any, received by Seller after Closing for distribution pursuant to this Section. “Rentals” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which ~~is one hundred eighty (180) days subsequent~~ include each Tenant’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, to the ~~date when~~ extent the ~~public telephone directory pertaining to each Property is published subsequent to the Closing Date. During~~ same exceeds any expense stop specified in such ~~period~~Tenant Lease), ~~Purchaser shall have the right to use the existing logos~~retroactive rentals, ~~in place advertising~~all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone ~~directory listings~~ receipts, locker rentals, vending machine receipts and ~~advertisements,~~ other sums and ~~telephone numbers, with respect~~ charges payable to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or ~~constitute a credit against a debt otherwise owed~~ its successor by Tenants under the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date Tenant Leases or from other occupants or users of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.the

Appears in 1 contract

Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)

Prorations. ~~13.1. Rents~~ (~~exclusive~~ A) Rents, including, without limitation, percentage rents, if any, and any additional charges and expenses payable by tenants under Leases, all as and when actually collected; real property taxes and assessments due and payable in the year in which the Closing occurs (without regard to the date levied, assessed or accrued and without regard to any fiscal year) (provided there shall be no proration of delinquent ~~rents, but including prepaid rents~~rents to Seller until such delinquent rents are collected); ~~prepaid associations dues~~water, ~~refundable security deposits~~ sewer and utility charges; amounts payable under any Service Contracts or other agreements or documents; annual permits and/or inspection fees (~~which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing~~calculated on the basis of the period covered); ~~fuels~~maintenance charges and amounts payable under reciprocal easement agreements and other recorded documents; vending machine and paper recycling income; and any other income and expenses of the operation and maintenance of the Property (including, without limitation, expenses prepaid ~~operating expenses; management fees~~ by Seller and expenses already paid by Seller but which are being amortized over time by Seller and with respect to which Seller shall receive a credit at Closing in the amount of ~~6% of~~ the prepaid or unamortized portion thereof), shall all be prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately prior to Closing ~~Date~~(i.e., ~~and credited~~ Buyer is entitled to the ~~balance~~ income and responsible for the expenses of the ~~cash due at~~ day of Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro365-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorationsday year; provided, however, that ~~such prorations shall be deemed final and not subject~~ any real estate taxes payable directly by tenants to ~~further post-closing adjustments at 5:00 PM Chicago time on~~ the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the governing taxing authorities or reimbursable by tenants after Closing ~~Date~~ shall not be prorated. ~~Instead~~Buyer shall reimburse Seller for the tenant improvement costs, leasing commissions, legal fees and other expenses, and free rent and other concessions, as provided in Section 7.2. All rents and other sums collected after the Closing shall be applied and paid as provided in this Section 8.5(a). If a tenant or other payor shall specifically designate a payment as being attributable to, or if it is readily ascertainable that a payment received from a tenant or other payor is attributable to a specific period of time or for a specific purpose, including, without limitation, for operating expenses or real estate tax payments which were not paid or were underpaid by such tenant or for reimbursement for work performed by Seller on the tenant's premises, such payment shall be so applied. If there is no such designation or if not so readily ascertainable, any payment received after Closing shall be deemed a payment due after the Closing until the tenant or other payor is current in its post-Closing obligations, and then such payments shall be paid to Seller to the extent ~~that Purchaser is able~~ of any rent or other sums owing to Seller for periods prior to Closing. Buyer shall use reasonable efforts to collect ~~said delinquencies~~such rents and other sums owing to Seller but shall not be required to initiate litigation or terminate any lease. Seller retains the right to collect any such rents and other sums from tenants and other payors after Closing; provided, however, that Seller shall have no right to evict any tenant or to exercise any other landlord-tenant remedy other than to sue for collection. Without intending to limit the generality of the xxxegoing, Buyer and Seller acknowledge and agree that certain rental payments by the tenants are collected monthly in arrears and, upon receipt of such payments after Closing, such sums shall be applied toward the period to which they properly pertain, and shall be prorated between Seller and Buyer, with the party receiving same promptly paying to the other party such other party's share thereof. Reconciliations of taxes, insurance charges and other expenses owed by tenants under Leases for the calendar year in which the Closing occurs shall be prepared by Buyer with the cooperation of Seller within ninety (90) days following the end of such year in accordance with the requirements set forth in the Leases and as provided in this Section 8.5(a). For those Leases in which tenants pay a proportionate share of taxes, insurance charges or other expenses over a base year amount or expense stop, the ~~Purchaser~~ proration between the parties of the income received from tenants over such base year amount or expense stop shall be ~~entitled~~ calculated based on the total amount of such expenses for the Property incurred by both Seller and Buyer for the entire calendar year, rather than on the amount of such expenses actually incurred by each party for such year, in order to ~~receive~~ enable the parties to determine if the base year amount or expense stop for such ~~delinquent rent attributable to~~ year is exceeded. Such income as so calculated shall be prorated between the parties based on the number of days each party owned the Property during such year and otherwise in accordance with this Section 8.5(a). Buyer shall promptly reimburse Seller for Seller's prorated share of all expenses that are prepaid by Seller before Closing for which Buyer receives reimbursement from a ~~tenant's occupancy~~ third party after Closing. The amount of ~~a portion of the Real Property for~~ any ~~period~~ cash security deposits held by Seller under Leases (plus any interest thereon accrued prior to the date of Closing, ~~free from any claim thereon~~ if required by law or contract) shall be credited against the ~~Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to~~ Purchase Price (and ~~until the day prior to the Closing Date, provided that~~ Seller shall ~~not agree~~ be entitled to ~~reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents~~retain such cash security deposits). Seller shall ~~not have~~ receive credits at Closing for the ~~right subsequent to Closing to seek (by legal action or otherwise) the collection~~ amount of any ~~rents delinquent~~ utility or other deposits with respect to the Property to the extent such deposits are assignable to Buyer and are so assigned or credited to Buyer at Closing. Buyer shall cause all utilities to be transferred into Buyer's name and account at the time of Closing. At Closing, Seller shall transfer to Buyer all non-cash security deposits and deliver to Buyer all necessary consents to such transfers (or as soon as reasonably practicable after Closing, if the procedures for such transfer reasonably require a delay in transfer until after the Closing). Between the date of Closing and until such transfer takes place, Seller agrees to hold any ~~period prior to Closing unless~~ such non-cash security deposit for the ~~tenant has vacated~~ benefit of Buyer. Seller and Buyer hereby agree that if any of the ~~premises under the pertinent Lease before~~ aforesaid prorations and credits cannot be calculated accurately on the Closing Date ~~and said Lease is~~ or in the case of rents or other charges that are paid in arrears or are otherwise not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent yet ascertainable or payable as of the Closing Date~~. 13.3. To~~ , then the ~~extent it is~~ same shall be calculated as soon as reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on practicable after the Closing Date or the date such amounts have been collected, and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall ~~expire on~~ pay said sum to the ~~day which is one hundred eighty~~ other party within thirty (~~180~~30) days ~~subsequent~~ thereafter. Any amounts not paid within such thirty (30) day period shall bear interest from the date actually received by the payor until paid at the greater of (i) the rate of ten percent (10%) per annum or (ii) the prime rate (or base rate) reported from time to time in the "Money Rates" column or section of THE WALL STREET JOURNAL as being the base rate on corporate loans at larger United States money center commercial banks plus two (2) percent. Upon request of either party, the parties shall provide a detailed and accurate written statement signed by such party certifying as to the ~~date when the public telephone directory pertaining to each Property is published subsequent~~ payments received by such party from tenants and other payors from and after Closing and to the ~~Closing Date. During~~ manner in which such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documentspayments were applied, and shall ~~not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned~~ make their books and records available for inspection by the other party during ordinary business hours upon reasonable advance notice. Any tax refund received by Buyer or Seller after Closing (net of third party costs incurred in obtaining such refund) shall be paid to the party(ies) who previously paid or were responsible for such taxes, whether it be Seller~~. (b) The Seller stipulates that there is full and adequate consideration for~~ , Buyer, or tenants under the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publicationLeases, and ~~in the event that Seller decides to place such a listing and/or advertisement, Seller~~ shall be ~~entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after~~ prorated appropriately. The preceding sentence shall survive Closing. (dB) In The cost of the ~~event~~ owner's policy of title insurance and all other title charges (including the cost of any ~~third party~~ extended coverage, endorsements and reinsurance or co-insurance charges) and the cost of the Survey shall be paid one-half by Seller and one-half by Buyer. Seller and Buyer shall each pay one-half of the state deed tax in connection with recording the deed and all recording fees. Any closing escrow fees and other closing charges of the Title Company shall be split equally between Seller and Buyer. Buyer shall be solely responsible for any and all costs and expenses pertaining to its financing of the Property (~~such as telephone company~~ although Buyer obtaining any financing is not a condition to its obligations hereunder), including, without limitation, loan title policies, lender's escrow and closing fees and all intangibles and mortgage taxes. The parties will execute and deliver any required transfer or ~~billboard company) makes a separate charge for the use of such listings or advertising subsequent~~ other similar tax declarations to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)appropriate governmental entity at Closing. (eC) ~~Purchaser's temporary license set forth~~ The total annual percentage rent payable under each Lease for the lease year in ~~this paragraph~~ which the Closing occurs shall ~~expire~~ be prorated between Seller and Buyer based solely on the ~~date(s) set forth above. If Purchaser continues to use the name currently being used by~~ respective number of days of ownership of the Property ~~subsequent to~~ by Seller and Buyer during such year, regardless of what portion of sales occur during the ~~expiration date~~ different parts of ~~this temporary license set forth above~~such year. At Closing, ~~then Purchaser~~ the parties shall ~~be liable~~ estimate the total percentage rent payable under each Lease for the applicable lease year based on the percentage rent paid under such Lease for the prior year, and Seller shall ~~pay to~~ receive a credit at Closing for its prorata share thereof. Once the ~~owner~~ final amount of ~~said rights a license fee equal to One Hundred Dollars~~ percentage rent is determined, the parties shall reprorate, and the party owing the other shall promptly remit the amount owed no later than fifteen (~~$100.00~~15) ~~for each day~~ days after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysreproration is determined. (fD) ~~If Purchaser continues to use said logos or trade names beyond~~ The provisions of this Section 8.5 shall survive the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such lawsClosing.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Behringer Harvard Reit I Inc)

Prorations. ~~13.1~~6.2. ~~Rents~~ 1Prorations. All income and expenses of the Property shall be apportioned as of 12:01 a.m. EST on the Closing Date, with the Operating Partnership being deemed to be the owner of the Property during the entire day on which the Closing Date occurs and being entitled to receive all revenue of the Property, and being obligated to pay all expenses of the Property, with respect to such day. (~~exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits~~ a) Such prorated items shall include the following: (~~which will be assigned~~ i) any other income with respect to ~~and assumed~~ the Property received by ~~Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in~~ the ~~amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability~~Closing Date, if any, and for the current month not yet delinquent. Such proration shall be based on an operating statement updated not less than 1 day prior to the Closing Date; (ii) taxes and assessments (including personal property taxes on the Fixtures and Personal Property) levied against the Property, the Contributor, subject to the Escrow Agents approval, shall escrow the funds for real estate taxes now due or delinquent for 2021, or that may becoming due and payable against the Property up and to Closing. For the avoidance of doubt, the foregoing escrow requirement is an accommodation to the Contributor to pursue payment of the its tax xxxx, however, under no circumstance shall any delinquent payment of taxes occur or a lien be created, and if for any reason the Contributor cannot satisfy the amounts, then the Escrow Agent shall be directed to pay the then due and owing taxes. (iii) utility charges for which the Contributor is liable, if any, such charges to be apportioned at the Closing on the basis of the most recent meter reading occurring prior to the Closing (dated not more than 15 days prior to the Closing) or, if unmetered, on the basis of a current xxxx for each such utility; (iv) all amounts payable with respect to Assumed Liabilities in effect as of the Closing; (v) credit shall be given to the Contributor for interest accounts, impound accounts, escrow accounts and other reserves included within the Existing Loans, which shall be transferred to the Operating Partnership at the Closing; (vi) room charges for the night before the Closing Date and ending on the morning of the Closing Date shall be split between the Contributor and the Operating Partnership on a fifty/fifty (50/50) basis and (vii) any other operating expenses or other items pertaining to the Property which are customarily prorated between a transferor and transferee of real estate in the county in which the Property is located. (b) Notwithstanding anything contained in this Section 6.2.1, the following shall apply: (i) The Operating Partnership shall be entitled to a credit against the Contributor’s Total Consideration to be delivered for the total sum of all deposits with respect to the Assumed Liabilities (not including interest accounts, impound accounts, escrow accounts and other reserves included within the Existing Loans, which shall be addressed in accordance with Section 6.2.1(a)(v) above) (the “Property Deposits”) to the extent not paid over to the Operating Partnership, and the Operating Partnership shall assume at the Closing the obligation under the Assumed Liabilities with respect to all Property Deposits credited or paid over to the Operating Partnership; (ii) Except as provided in the following sentence, all delinquent real estate taxes and assessments shall be paid by the Contributor at or before the Closing, together with any interest, penalties or other fees related to any delinquent taxes. In determining prorations relating to non-delinquent taxes, the Operating Partnership shall be credited with an amount equal to the real estate taxes and assessments applicable to the period prior to the Closing Date, to the extent such amount has not been actually paid by the Contributor. In the event that the Contributor has paid prior to the Closing any real estate taxes or assessments related to the Property applicable to the period after the Closing Date, the Contributor shall be entitled to a credit for such ~~items); operating expenses~~ amount. In connection with the re-proration of real estate taxes and assessments for which ~~are reimbursable~~ a credit was given or a proration was made at the Closing, the Parties shall adjust the differences between them promptly upon demand being made therefor by either the ~~tenants for~~ Contributor or the Operating Partnership. If, after the Closing, any additional real estate taxes or assessments applicable to the period prior to the Closing Date ~~less~~ are levied for any ~~amount previously paid by~~ reason, including back assessments or escape assessments, then the ~~tenants~~ Contributor shall pay all such additional amounts, including any additional fees and interest, if any. If, after the Closing, the Contributor or the Operating Partnership receive any property tax refunds regarding any Property relating to a period prior to the Closing, then that portion of the refunds related to a period prior to the Closing that is required to be refunded to any tenant of the Property shall be ~~credited~~ delivered to ~~Seller;~~ or retained by, as the case may be, the Operating Partnership for the purpose of making such refund payments with the remaining portion of such refunds retained by or delivered to, as the case may be, the Contributor. The Operating Partnership shall pay all supplemental taxes resulting from the change in ownership and ~~other similar items~~ reassessment occurring as the result of the Closing pursuant to this Agreement; (iii) The Operating Partnership shall take all steps necessary to effectuate the transfer of all utilities to the name of the Operating Partnership as of Closing, where necessary, post deposits with the utility companies, and provide the Contributor with written evidence of the transfer at or prior to Closing. The Contributor shall be ~~adjusted ratably~~ entitled to recover any and all deposits held by any utility company as of ~~11:59 p.m.~~ the Closing Date; (iv) The net proration credit to or charge against the Contributor on account of the prorations adjustments to be made upon the Closing shall be reflected through an adjustment to the cash portion of the Contributor’s Total Consideration to be delivered pursuant to this Agreement. Any other proration adjustments made following the Closing shall be made in cash; and (v) If any prorations hereunder cannot be calculated accurately on the Closing Date, ~~and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas~~ then they shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill calculated as soon after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date as feasible. Either party owing the other party a sum of money based on such subsequent proration(s) shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect promptly pay said sum to the ~~Properties~~other party, ~~i.e.~~with interest per annum at the prime rate of interest as set forth in The Wall Street Journal, those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of plus 2% from the Closing Date ~~so that Seller shall be responsible for any costs associated therewith prior~~ to the ~~Closing Date~~ date of payment if payment is not made within 10 business days after delivery of a xxxx therefor. Once all revenue and ~~Purchaser~~ expense amounts have been finally and completely ascertained, the Operating Partnership shall ~~be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes~~ prepare a final proration statement which ~~shall be deemed final as prorated on the Closing Date)~~ shall be subject to ~~post-closing adjustments as necessary to reflect later relevant information not available at~~ the ~~Closing~~ Contributor’s reasonable approval. Upon the Contributor’s acceptance and ~~to correct~~ approval of any ~~errors made at~~ final proration statement submitted by the ~~Closing with respect to~~ Operating Partnership, such ~~prorations; provided, however, that such prorations~~ statement shall be conclusively deemed ~~final~~ to be accurate and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3final. To the extent it any reconciliation is ~~reasonably possible for the Seller to do so~~required, the ~~Seller~~ Operating Partnership shall ~~grant (or shall arrange for~~ be permitted to offset any amounts by adjusting the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant Series T Limited Units transferred to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the SellerContributor. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Contribution Agreement (Lodging Fund REIT III, Inc.)

Prorations. ~~13.1. Rents~~ (~~exclusive of delinquent rents~~a) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately preceding the Closing ~~Date~~Date (the “Closing Time”), the following (collectively, the “Proration Items”): real estate and ~~credited~~ personal property taxes and assessments for the year in which Closing occurs, utility bills (except as hereinafter provided), collected Rentals (subject to the ~~balance~~ terms of (b) below), operating expenses payable by the owner of the ~~cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based~~ Property (on the ~~most recent ascertainable data~~basis of a 365 day year, actual days elapsed) and amounts payable under Service Contracts assumed by Purchaser on an accrual basis. Seller shall pay all amounts due thereunder which accrue prior to the Closing and Purchaser shall pay all mounts accruing on the Closing Date and thereafter. All capital and other improvements (including labor and materials) which are performed or contracted for or by Seller at or prior to the Closing will be paid by the ~~bills therefor~~ Seller at or prior to Closing, without contribution or proration from Purchaser. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the ~~Closing~~Closing Time, and ~~the~~ Purchaser ~~shall pay the utility bills therefor~~ will be charged and credited for all ~~periods subsequent thereto~~of the Proration Items relating to the period after the Closing Time. Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld, delayed or conditioned) two (2) Business Days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the ~~utility company~~ actual amounts of the Proration Items are not known as of the Closing Time, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller’s insurance policies will not ~~issue separate bills~~be assigned to Purchaser except as otherwise provided in Section 9 above. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Time, in which event no proration will be made at the Closing with respect to utility bills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. A final reconciliation of Proration Items shall ~~receive a credit against the Purchase Price for Seller's portion~~ be made by Purchaser and ~~shall pay the entire utility bill~~ Seller within sixty (60) days after Closing~~. If Seller hxx xre-paid any~~ , provided that such ~~utilities (so long~~ reconciliation, as ~~no more than~~ it relates to real estate taxes shall be made within thirty (30) days following the issuance of the tax bills for the Real Property for the year in ~~advance~~ which Closing occurs. The provisions of this Section 10.4 will survive the Closing until the date which is six (6) months following the Closing Date (the “Reconciliation Period”), and in the ~~ordinary course~~ event any items subject to proration hereunder are discovered within such period, the same shall be promptly prorated by the parties in accordance with the terms of ~~business~~this Section 10.4. Seller and Purchaser, pursuant to RCW 60.80.020(1), ~~then~~ hereby waive the services of Title Company in administering the disbursement of closing funds necessary to satisfy any unpaid utility charges. Purchaser shall transfer all utilities at the Property to its name as of the Closing Date, and where necessary, post deposits with the utility companies. Seller shall use commercially reasonable efforts to cause all utility meters to be ~~charged its portion~~ read as of ~~such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore,~~ the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and SellerClosing Date. Seller shall be ~~reimbursed at Closing for~~ entitled to recover any ~~utility~~ and all deposits ~~which the Seller has deposited with~~ held by any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All ~~costs associated with telephone directory listings and any other prepaid advertisements~~ charges for utilities shall be prorated as outside of the ~~Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and~~ escrow contemplated herein within sixty (60) days after the Closing Date. All prorations ~~described in this Agreement (except prorations for real and personal property taxes which~~ shall be ~~deemed final as prorated on~~ made in accordance with customary practice in the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day jurisdiction in which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property ~~for any period prior to~~ is located, except as expressly provided herein. Following the ~~date of~~ Closing, ~~free from any claim thereon by the Seller.~~ Seller ~~may use whatever lawful means are available to Seller to collect any delinquencies up to~~ and ~~until the day prior to the Closing Date, provided that Seller~~ Purchaser shall ~~not agree to reduce rents for any period of time after Closing~~ reasonably cooperate with each other in order to ~~induce any tenants~~ calculate and determine the correct amount of all prorations required to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties be made pursuant to ~~the following terms and conditions: (a) The temporary license granted by~~ this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the SellerSection 10. (b) ~~The Seller stipulates that there is full and adequate consideration~~ Purchaser will receive a credit on the Closing Statement for the ~~license~~ prorated amount (as of the Closing Time) of all Rentals previously paid to and collected by Seller and attributable to any period following the Closing Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rentals, if any, received by Seller after Closing and properly attributable to any period following the Closing Time. “Rentals” as used herein ~~granted.~~ includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (~~c) Purchaser shall make arrangements with~~ which include each Tenant’s proportionate share of building operation and maintenance costs and expenses as provided for under the ~~pertinent~~ applicable Tenant Lease, to the extent the same exceeds any expense stop specified in such Tenant Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone ~~companies so that all existing telephone directory listings~~ receipts, locker rentals, vending machine receipts and ~~advertisements~~ other sums and ~~signs can be replaced in~~ charges payable to Seller or its successor by Tenants under the Tenant Leases or from other occupants or users of the Property, excluding specific tenant xxxxxxxx which are governed by Section 10.4(d). Rentals are “Delinquent” if they were due ~~course~~ prior to the Closing Time and ~~within the license period specified above. In the event that the publication close date for any publication in which Seller currently~~ payment thereof has ~~a telephone directory listing and/or advertisement occurs after the date hereof but~~ not been made on or before the Closing ~~Date~~Time. Delinquent Rentals will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rentals, but Purchaser ~~shall~~ will have no liability for the ~~right~~ failure to ~~place a listing and/or advertisement~~ collect any Delinquent Rentals payable to Seller and will not be required to conduct lock-outs or take any other legal action to enforce collection of any such amounts owed to Seller by Tenants of the Property. All sums collected by Purchaser within one (1) year after Closing from each Tenant (excluding Tenant payments for Operating Expense Recoveries attributable to the period prior to the Closing Time governed by Section 10.4(c) below and tenant specific xxxxxxxx for tenant work orders and other specific services as described in ~~such publication at Purchaser's sole cost~~ and ~~expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication~~governed by Section 10.4(d) below, ~~and in the event that Seller decides to place such a listing and/or advertisement, Seller~~ which shall be ~~entitled~~ payable to ~~a pro-rata credit for~~ and belong to Seller in all events) will be applied first to amounts currently owed by such ~~portion of the cost of such listing and/or advertisement~~ Tenant to Purchaser (including Delinquent Rentals attributable to the period after ~~Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to~~ the Closing ~~Date~~Time), then any collection costs of Purchaser related to such Tenant, and then to prior delinquencies owed by such Tenant to Seller. In no event shall ~~be responsible to pay same subsequent to~~ Seller initiate litigation or other legal action after the Closing Date ~~(but no such payment shall accrue~~ to ~~the benefit~~ pursue collection of ~~the~~ Delinquent Rentals. Any sums collected by Purchaser and due Seller ~~or constitute a credit against a debt otherwise owed~~ will be promptly remitted to Seller, and any sums collected by ~~the~~ Seller and due Purchaser will be promptly remitted to ~~said third party)~~Purchaser. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale and Purchase (Hines Global REIT, Inc.)

Prorations. ~~13.1. Rents (exclusive~~ Subject to the terms of ~~delinquent rents~~this Section 9.1, ~~but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser~~ at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period or prior to the ~~Closing Date less any amount previously paid by~~ Closing, the ~~tenants~~ parties shall ~~be credited to Seller; and other similar items shall be adjusted ratably~~ prorate, as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to date immediately preceding the Closing Date ~~shall be paid~~ (the “Prorations Time”), all income and expenses with respect to the Property and payable to or by ~~Purchaser. If~~ the ~~amount of any of the items to be prorated is not then ascertainable~~LLC, ~~the adjustments thereof shall be~~ including, without limitation: (i) all real property taxes on the basis of the ~~most recent ascertainable data. The Purchaser~~ fiscal period for which assessed (if the Closing shall ~~assume Seller's obligations~~ occur before the tax rate is fixed, the apportionment of taxes shall be based on the tax rate for the preceding period applied to the latest assessed valuation); (ii) rents and other tenant payments and tenant reimbursement, if any, received under the ~~Seller's existing real estate tax consulting agreements~~ Leases; (iii) charges for water, sewer, electricity, gas, fuel, steam, vault taxes and other utility charges (other than those charges required to be paid directly to the utility company by Tenant) all of which shall be read promptly before the Closing; (iv) periodic fees for licenses, permits or other authorizations with respect to the ~~Properties, i.e., those agreements which Seller has entered into~~ Property; and (v) all other items customarily prorated in connection with ~~firms who are entitled to a commission based on services rendered and~~ transactions of the ~~extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties~~type contemplated by this Agreement. ~~The fees or commissions payable to said consultants (if any)~~ A further proration shall be ~~treated as a portion of~~ made between the ~~real estate~~ parties when the tax ~~liability to be pro-rated as of~~ bxxx for the tax year in which the Closing ~~Date~~occurs becomes available. ~~All costs associated~~ In conjunction with ~~telephone directory listings~~ such prorations, Seller will assign to Purchaser its share of all utility deposits which are assignable (and ~~any other prepaid advertisements shall be prorated as of the Closing Date so that~~ Seller shall be ~~responsible for any costs associated therewith prior to~~ credited with such amounts). In connection with the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions calculation of the ~~preceding sentence shall survive~~ Purchase Price under Section 2.1 hereof, it is anticipated that the ~~Closing. 13.2. Rents which are delinquent as~~ items prorated hereunder will be adjusted on an aggregate basis against the net proceeds of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion hypothetical sale of the ~~Real~~ Property for ~~any period prior to~~ $362,000,000. Accordingly, for purposes of adjusting the ~~date~~ Purchase Price between Purchaser, in its capacity as purchaser of ~~Closing~~Seller’s LLC Interest, ~~free from any claim thereon by the~~ and Seller~~. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date~~, ~~provided that Seller shall not agree to reduce rents for any period~~ in its capacity as seller of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. FurthermoreSeller’s LLC Interest, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as bear 66 2/3% of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documentsamounts debited hereunder, and shall ~~not use~~ receive 66 2/3% of the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration amounts credited hereunder, for the ~~license herein granted. (c)~~ items of income and expenses prorated or adjusted hereunder for periods on or before the Proration Time, and Purchaser shall ~~make arrangements with~~ bear 66 2/3% of the ~~pertinent telephone companies so that all existing telephone directory listings~~ amount debited hereunder, and ~~advertisements~~ shall receive 66 2/3% of the amounts credited hereunder for the items of income and ~~signs can be replaced in due course and within the license period specified above. In the event that the publication close date~~ expense prorated or adjusted hereunder for ~~any publication in which Seller currently has a telephone directory listing and/or advertisement occurs~~ periods after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after ClosingProrations Time. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement (Overseas Partners LTD)

Prorations. ~~13.1~~12.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); interest on and any fees including, without limitation, credit enhancement, issuer or trustee fees respecting the Bonds; water and other utility charges, if any; fuels; prepaid reasonable and customary operating expenses~~; management fees in the amount of 6% of prorated rents credited to Purchaser~~; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellertaxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day prior to the Closing Date, and credited to against the balance of the cash due at Closing. ~~Utilities~~To the extent any escrows or bond repayment deposits for taxes and insurance established in connection with the Bonds or Existing Bond and Mortgage Documents are not refunded to Seller at Closing, ~~including water, sewer, electric, and gas~~ the proceeds in said escrows shall be ~~prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period~~ assigned to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller amounts thereof shall be ~~reimbursed~~ a credit to Seller at ~~Closing for any utility deposits which~~ the ~~Seller has deposited with any utility company and which will be assigned to the Purchaser at~~ Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. ~~The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect~~ All prorations will be final except as to ~~the Properties, i.e., those agreements which Seller has entered into with firms who are entitled~~ delinquent rent referred to ~~a commission based on services rendered~~ in Paragraph 12.2 below and ~~the extent to which they are able to achieve a reduction in the~~ except for real estate taxes ~~otherwise payable with respect to~~ which will be reprorated upon receipt of actual bills. If any unit has remained vacant for more than 9 days without being made "rent ready", Seller will give Purchaser a credit of $250 for such unit for cleaning, painting touch-up, carpet shampoo and minor appliance repair. If such a unit requires carpet replacement or other renovation not covered by the ~~Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion~~ preceding sentence, Purchaser and Seller will agree on the amount of the ~~real estate tax liability~~ credit to ~~be pro-rated~~ Purchaser. If Seller receives a credit for a utility deposit, Seller shall execute an assignment thereof substantially in the form attached as Exhibit N. 12.2. All monies received after Closing by Purchaser from any tenant of the ~~Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible~~ Property who is indebted under a lease for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent ~~attributable to a tenant's occupancy of a portion of the Real Property~~ for any period prior to the ~~date~~ Closing Date will first be applied to rent or other charges currently due to Purchaser under the applicable lease. Any balance remaining after the application of ~~Closing~~such monies to current rent shall be deemed a "Post-Closing Receipt", ~~free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior~~ but only to the ~~Closing Date, provided that Seller shall~~ extent such pre-closing indebtedness has not ~~agree to reduce rents for any period of time after Closing~~ been paid in ~~order to induce any tenants to pay delinquent rents~~full. ~~Seller shall not have the right subsequent to Closing to seek~~ Within ten (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (18010) days ~~subsequent to the date when the public telephone directory pertaining to~~ following each ~~Property is published subsequent to the~~ receipt by Purchaser of a Post-Closing ~~Date. During such period~~Receipt, Purchaser shall ~~have the right~~ pay such Post-Closing Receipt to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinSeller. Purchaser shall ~~not~~ use ~~the existing logos or trade name on stationery~~good faith efforts to collect all amounts which, ~~business cards~~upon collection, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovewould constitute Post-Closing Receipts hereunder. ~~In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs~~ Within 120 days after ~~the date hereof but before~~ the Closing Date, Purchaser shall ~~have~~ deliver to Seller a reconciliation statement of Post-Closing Receipts through the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period first 90 days after ~~Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to~~ the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, ~~then~~ Purchaser shall ~~be responsible~~ deliver to ~~pay same subsequent~~ Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Paragraph 12.2 of this Agreement shall survive the Closing ~~Date (but no such payment shall accrue to~~ and the ~~benefit~~ delivery and recording of the ~~Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)~~Deed. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Sale Agreement (Balcor Pension Investors Vi)

Prorations. ~~13.1. Rents~~ All items of income and expense shall be paid, prorated or adjusted as of the close of business on the day prior to the Closing Date (~~exclusive~~ the "Proration Date") in the manner hereinafter set forth: 5.1 Purchaser shall be credited with (i) the amount of ~~delinquent rents~~all rents received by Seller and attributable to the period commencing on the Closing Date, ~~but including prepaid rents); prepaid associations dues,~~ (ii) all unapplied refundable cash security deposits held by Seller and which were made by tenants under all Leases in effect as of the Closing Date, and (iii) all prepaid security deposits for Leases whose terms have not commenced as of the Closing Date. 5.2 All collected rents for the month of Closing shall be prorated between Purchaser and Seller based upon their respective days of ownership for such month in which ~~will~~ the Closing occurs. Neither Purchaser nor Seller shall receive credit at Closing for any payments of rental obligations due but not paid as of the Proration Date. 5.3 Purchaser covenants to xxxx tenants on a monthly basis for amounts due from tenants attributable to periods prior to Closing for a period of three (3) consecutive months but shall have no obligation to enforce collection of any such past due accounts from or against any tenant. Any amounts received from tenants after Closing shall be ~~assigned~~ applied on a tenant by tenant basis in the following order: (i) first on account of any amount then due and payable or past-due and payable to Purchaser from such tenant, (ii) next, on account of any amount due Seller from such tenant for the period up to and ~~assumed~~ including the Proration Date and (iii) finally, any balance then remaining to Purchaser. Seller retains the right to pursue its remedies against tenants after Closing for any delinquent payments or other amounts owed to Seller, except for actions or proceedings affecting possession or landlord liens. However, Seller will not exercise any such rights or remedies unless such amounts have not been collected by Purchaser and ~~credited~~ paid to Seller within three (3) months after such amounts were due and payable to Seller. Any money due to Seller under Section 5.2 or 5.3 shall be remitted to Seller within fifteen (15) days after the end of each month in which Purchaser ~~at Closing~~receives such money. 5.4 Operating expenses, including, without limitation, any prepaid expenses such as permits, licenses and membership dues, shall be prorated between Purchaser and Seller based upon the actual days of their respective ownership of the Property utilizing the actual expenses or reasonable estimates. 5.5 Real estate taxes shall be prorated between Seller and Purchaser based upon the actual days of ownership of the parties for the year in which Closing occurs utilizing the most recent ascertainable tax xxxx(s)~~; fuels; prepaid operating expenses; management fees~~ . Seller and Purchaser agree to re-prorate said real estate taxes within thirty (30) days of Purchaser's receipt of the actual tax xxxx for the tax year in ~~the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability~~question, if any, . Seller reserves the rights to continue to contest any assessment of the Property or any portion thereof and to attempt to obtain a refund for ~~such items); operating expenses which are reimbursable by the tenants for the~~ 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 less any amount previously paid by the tenants shall be credited~~ Date. 5.6 Except for utilities billed directly to ~~Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date~~tenants, ~~and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas~~ utilities shall be prorated at as of the Proration Date based upon estimates using the prior month's actual invoices. 5.7 All insurance policies and property management agreements shall be terminated as of the Closing ~~based~~ Date and there shall be no proration with respect to these items. 5.8 Not more than two (2) business days prior to Closing (“Walk-Though Date”), a representative of Purchaser and a representative of Seller shall conduct an onsite walk-through of the then unoccupied rental units on the ~~most recent ascertainable data~~Property to determine whether such unoccupied rental units are in “rent ready” condition. With respect to any rental unit that is vacated on or before five (5) days prior to Closing that Seller ~~shall pay at Closing~~ has not placed in a “rent ready” condition before the ~~bills therefor for the period to and including the Closing~~Walk-Through Date, ~~and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the~~ Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing ~~for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable~~ in ~~installments which are due subsequent to the Closing Date shall be paid by Purchaser. If~~ the amount of ~~any of the~~ $450.00 per unit. As used herein, “rent ready” condition shall mean ready for occupancy, equipped with working appliances, cleaned and freshly painted, if necessary. All other items ~~to be~~ which are customarily prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect in transactions similar to the ~~Properties~~transaction contemplated hereby and which were not heretofore dealt with, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall will be prorated as of the ~~Closing Date so that~~ Proration Date. Seller ~~shall be responsible for any costs associated therewith prior to the Closing Date~~ and Purchaser shall ~~be responsible for any costs associated therewith arising from and after~~ cause the ~~Closing Date. All~~ Title Company to prepare a draft closing statement containing the prorations described ~~in this Agreement~~ above and deliver the same together with invoices or bills for all prorated expenses and other reasonable backup information from Seller no later than 12:00 p.m. (~~except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date~~Chicago time) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty two (302) business days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event ~~that the publication close date for~~ any ~~publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date~~prorations or computations made under this Section are based on estimates or prove to be incorrect, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller then either party shall be entitled to ~~a pro-rata credit for~~ an adjustment to correct the same, provided that it makes written demand on the party from whom it is entitled to such ~~portion~~ adjustment within one hundred and twenty (120) days after the end of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to calendar year in which the Closing ~~Date, then~~ occurs. Purchaser shall indemnify and hold Seller harmless from and against any and all liabilities, losses, damages, claims and costs (including reasonable attorney fees, court costs and litigation expenses) which Purchaser received credits pursuant to this Section 5. After the Closing, Seller agrees that it will take such actions and properly execute and deliver to Purchaser such further instruments of assignment, conveyance and transfer as may be ~~responsible~~ necessary to ~~pay same subsequent~~ assure, complete and evidence the full and effective transfer and conveyance of Property, including, without limitation, taking any actions or executing any documents required to transfer the ~~Closing Date (but no such payment shall accrue~~ web addresses, domain names and URLs to ~~the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license~~ Purchaser at Closing. The indemnity set forth in the immediately preceding sentence and the covenants contained in this ~~paragraph~~ Section 5 shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional dayssurvive Closing. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Resource Real Estate Opportunity REIT II, Inc.)

Prorations. ~~13.1. Rents~~ At the Closing, prorations between the applicable Seller, on the one hand, and Buyer, on the other hand, shall be made for each Property as follows: (~~exclusive~~ a) All general ad valorem taxes, special assessments and other taxes or charges of ~~delinquent rents~~a similar nature imposed by any Governmental Authority against a CLP Managed Property, ~~but including prepaid rents); prepaid associations dues~~or by any applicable property owners association, ~~refundable security deposits~~ utility district or any other body (~~which will~~ collectively, the “Impositions”) against the CLP Managed Properties for all prior years and all current year Impositions that are due and payable on or before the Closing Date, together with all payroll taxes, sales taxes, license taxes, liquor taxes and use taxes that are due and payable with respect to the CLP Managed Properties on or before the Closing Date, shall have been paid by the applicable Seller on or before the Closing Date, subject to proration as follows: Buyer shall be ~~assigned~~ responsible for the payment to ~~and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in~~ each applicable Seller of the amount of 6% Impositions that relate to the period on and after the Closing Date (and the Sellers shall be responsible for the payment of ~~prorated rents credited~~ such Impositions relating to ~~Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for~~ the period prior to the Closing ~~Date less any amount previously~~ Date). To the extent that Impositions for CLP Managed Properties for the current year have accrued but are not yet due and payable, such amounts shall be paid by ~~the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on~~ Buyer following the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser Buyer shall receive a credit against the Purchase Price for ~~Seller's portion~~ the amount thereof that is attributable to the period prior to Closing, such pro ration to be based on the most recent available information, as adjusted by any known changes relating to the period during which the Closing occurs, and shall be subject to true-up pursuant to Section 6.5(l). Sellers and Buyer acknowledge that with respect to each CLP Leased Property, the Tenant under the Lease for such CLP Leased Property is responsible to pay all Impositions with respect to such CLP Leased Property, and therefore shall not be subject to proration under this Section 6.5. (b) All charges for gas, electricity, water, telephone, sewer and other utilities for the ~~entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser~~ CLP Managed Properties shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated ~~is not then ascertainable, the adjustments thereof shall be~~ on the basis of the most recent ~~ascertainable data~~available information, as reasonably adjusted to account for known variances from usage that would not otherwise be reflected in such information. ~~The Purchaser~~ Sellers shall ~~assume Seller's obligations under~~ receive a credit for, and shall assign to Buyer, all deposits made by Sellers at the ~~Seller's existing real estate tax consulting agreements~~ CLP Managed Properties for any utility services; Sellers shall request that the companies and municipalities furnishing utility services to the CLP Managed Properties make termination readings on the morning of the Closing Date, or on a date as soon thereafter as practicable, and submit final statements for utility services, which shall be reconciled pursuant to the Statement of Adjustments. Sellers and Buyer acknowledge that with respect to each CLP Leased Property, the ~~Properties, i.e., those agreements which Seller has entered into with firms who are entitled~~ Tenant under the Lease for such CLP Leased Property is responsible to ~~a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable~~ pay all such utility charges with respect to such CLP Leased Property, and therefore shall not be subject to proration under this Section 6.5. (c) With respect to the CLP Managed Properties~~. The~~ , all membership dues for the month in which the Closing occurs or for any subsequent period after Closing, all items of expense under Approved Contracts, and all membership fees, charges, handicap fees, driving range fees, golf club storage fees, locker fees, trail fees and other income items that have accrued to the accounts of members or ~~commissions payable to said consultants (if any) shall be treated as a portion~~ customers of the ~~real estate tax liability to be pro-rated~~ CLP Managed Properties but that have not been invoiced as of the Closing Date~~. All costs associated with telephone directory listings and any other prepaid advertisements~~ , shall be prorated as of the Closing ~~Date so that~~ Date. (d) All prepaid membership dues, fees or charges, handicap fees, driving range fees, golf club storage fees, locker fees, trail fees and other charges collected by Seller ~~shall be responsible for any costs associated therewith prior to~~ or the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing Manager with respect to ~~such prorations; provided, however, that such prorations~~ the CLP Managed Properties shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent prorated as of the Closing Date. ~~13.3. To~~ (e) Buyer shall receive a credit in the ~~extent it is reasonably possible~~ amount of all deposits received by Sellers or Manager for ~~the Seller~~ Bookings to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in take place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on after the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to ~~each Property without additional compensation to~~ the ~~Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents,~~ CLP Managed Properties (and shall ~~not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller~~assume all liability arising after Closing with respect thereto). (bf) ~~The Seller stipulates that there is full~~ Buyer shall receive a credit for all gift certificates, rain checks, or other instruments redeemable for goods or services at the CLP Managed Properties and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs sold or issued on or after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. is twelve (d12) ~~In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent~~ months prior to the Closing Date, ~~then Purchaser~~ to the extent they have neither been redeemed nor expired as of the Closing Date. (g) Buyer shall receive a credit for any cash security deposit held by Sellers pursuant to any of the Leases, to the extent such security deposit or any portion thereof has not been retained by Sellers prior to the Closing Date pursuant to the terms of the applicable Lease, and Buyer shall thereafter be responsible for the return of such deposit in accordance with the applicable lease; Seller shall receive a credit for any cash security deposit held by Ground Lessors pursuant to any of the Ground Leases, to the extent such security deposit or any portion thereof has not been retained by the Ground Lessors prior to the Closing Date pursuant to the terms of the applicable Ground Lease. (h) All other items of income or expense with respect to the CLP Managed Properties shall be prorated as of the Closing Date, with all such items of income and expense that relate to the Closing Date and the period after the Closing Date being credited and/or charged, as applicable, to the Buyer’s account. Without limiting the generality of the preceding sentence, (i) income received by Sellers and accounts receivable that represent xxxxxxxx for goods and services to be rendered on or after the Closing Date shall be for the account of Buyers, (ii) pre-paid expenses which relate to goods or services to be provided to the CLP Managed Properties in the ordinary course of business on or after the Closing Date shall be borne by Buyers, and (iii) refunds, to the extent relating to the period prior to the Closing, shall be for the account of the applicable Seller. (i) Buyer and Seller acknowledge and agree that the balance of all tax and insurance escrow accounts described in the Leases and Management Agreements and held by Seller (the “Escrow Accounts”) and the balance of all Prepaid Annual Membership Dues (as defined in the Leases and/or Management Agreements) held by Seller shall be transferred and assigned by Seller to Buyer at the Closing (or alternatively, Buyer shall receive a credit to/reduction of the Purchase Price in the amount of such Escrow Accounts and Prepaid Annual Membership Dues) and Buyer shall thereafter be responsible ~~to pay~~ for same ~~subsequent~~ in accordance with the applicable Lease or Management Agreement. (j) Buyer and Seller acknowledge and agree that the balance of all cap ex reserve accounts at the Properties (the “Reserves”) are set forth on Schedule 10.1(v)(A) as of the date of such report. Buyer shall receive a credit against the Purchase Price in the amount of the balance of such Reserves in place on the day prior to the Closing Date (~~but no such payment shall accrue~~ which amount includes an uncommitted contingency component which is being credited against the Seller’s obligation to credit Buyer an amount equal to the ~~benefit~~ Arrowhead Tap Fee pursuant to Section 5.2(c)), and Buyer shall thereafter be responsible for same in accordance with the applicable Lease or Management Agreement, including the obligation to establish new reserve accounts as may be required. Seller shall retain ownership of the ~~Seller~~ Reserve accounts which are not included in the Property. Prior to Closing, deposits into and withdrawals from the Reserves shall be made in the ordinary course of business in accordance with the terms of the applicable Lease or ~~constitute a credit against a debt otherwise owed by the Seller to said third party)~~Management Agreement. (ek) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX

Appears in 1 contract

Samples: Purchase and Sale Agreement (CNL Lifestyle Properties Inc)

Prorations. ~~13.1. Rents~~ The following adjustments to the Purchase Price shall be made at the Closing by proration of the amounts as specified below as of 11:59 p.m. of the date preceeding the closing: (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; a) Ad valorem real estate and personal property taxes ~~prorated~~ applicable to the Properties for 1996, such apportionment to be made on the basis of the previous year's taxes unless the bill therefor is availxxxx. Once the taxes for 1996 are established, upon written demand by either party, the parties shall promptly recompute such proration in accordance with the current tax figures, and any excess payment or credit received by a ~~"net" basis~~ party shall promptly be reimbursed by it to the other party. Buyer shall have the right to contest the 1996 taxes and Seller shall provide Buyer with any information in Seller's possession to assist such contest. The provisions for readjustment of taxes are intended to and shall survive the Closing of this transaction. (~~i.e. adjusted for all tenants' liability~~b) Water and sewer rentals, ~~if any, for such items); operating expenses which are reimbursable by the tenants~~ charges for the ~~period~~ 10/29/96 6 supply of electricity, gas, trash collection and other utility and service charges. (c) Charges and receipts under service, maintenance, and other like contracts affecting the Subject Property. The amount of charges paid by Seller prior to the Closing ~~Date less any amount previously paid by~~ and attributable to a period after the ~~tenants~~ Closing shall be credited to Seller~~; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing~~. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the The amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith receipts received prior to the Closing ~~Date~~ and ~~Purchaser shall be responsible for any costs associated therewith arising from and~~ attributable to a period after the Closing ~~Date. All prorations described in this Agreement (except prorations for real and personal property taxes which~~ shall be ~~deemed final as prorated on the Closing Date) shall be subject~~ credited to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after ClosingBuyer. (d) ~~In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent~~ All other proratable items with respect to the ~~Closing Date~~Subject Property, ~~then Purchaser~~ including, but not limited to, rents. Security deposits shall be ~~responsible~~ transferred as an escrow item which shall not adjust the Purchase Price. Rents and reimbursements for periods prior to ~~pay same subsequent~~ Closing which have not been collected as of Closing, shall be applied first to ~~the~~ post-Closing ~~Date (but no such payment shall accrue~~ date delinquencies, and then to ~~the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)~~pre-Closing date delinquencies. (e) ~~Purchaser's temporary license set forth in this paragraph shall expire on~~ All items to be adjusted for which figures are not available at the ~~date(s) set forth above. If Purchaser continues~~ Closing, including real estate taxes for the year 1996, will be adjusted, and payment therefor will be made by Seller to ~~use the name currently being used~~ Buyer or by ~~the Property subsequent~~ Buyer to ~~the expiration date of this temporary license set forth above~~Seller, ~~then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day~~ as appropriate, as soon as figures are available after the ~~permitted date set forth above for each Property for which Purchaser continues to use~~ Closing and, in the ~~existing trade name. In no event~~case of revenues, ~~however~~if any, ~~shall such extended license period exceed ninety (90) additional days~~when they are collected. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase Agreement (Regency Realty Corp)

Prorations. ~~13.1. Rents~~ (~~exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits~~ a) The following adjustments to the Purchase Price paid hereunder shall be made between Seller and Purchaser and shall be prorated (~~which will be assigned~~ as applicable) on a per diem basis up to and ~~assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in~~ the ~~amount of 6% of prorated rents credited to Purchaser;~~ day immediately before the Closing Date: (i) Accrued general real ~~and personal property~~ estate taxes ~~prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants~~ for the ~~period prior to~~ Property (the “Taxes”) for the year of Closing shall be prorated as of the Closing Date ~~less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m.~~ on the ~~Closing Date, and credited to the balance~~ basis of the ~~cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor~~ actual taxes for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's addressyear, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainableknown, ~~the adjustments thereof shall be~~ or if unknown, on the basis of the most recent ascertainable ~~data~~taxes, but in either case based on the maximum allowable discount for early payment. ~~The~~ To the extent such Taxes are due and payable after Closing, Purchaser shall ~~assume Seller's obligations under~~ pay all such taxes when they become due and payable and, promptly thereafter, the ~~Seller's existing real estate tax consulting agreements with respect~~ parties shall re-prorate taxes with, if any amount is due, an appropriate payment from one party to the ~~Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based~~ other on ~~services rendered and~~ the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion basis of the ~~real estate tax liability~~ amount of taxes then due and payable. Prior to ~~be pro-rated as of the Closing Date. All costs associated with telephone directory listings~~ or at Closing, Seller shall pay or have paid all Tax bills which are due and ~~any other prepaid advertisements shall be prorated as of~~ payable prior to or on the Closing Date so and shall furnish evidence of such payment to Purchaser. Special assessments which are confirmed or become a lien prior to Closing and pending assessments for work substantially completed as of Closing shall be credited to Purchaser at Closing. Purchaser shall receive no credit for other pending special assessments. (ii) Jupiter Park of Commerce Association annual assessments and dues for the year of Closing (the “Association Dues”); (iii) Charges under Contacts to the extent assigned to, and assumed by Purchaser at Closing (the “Contract Fees”); and (iv) South Florida Water Management District General Water Use Permit No. 50-25845-W fee and Palm Beach County Wellfield Operating Permit WP-91-054 annual fee (collectively, the “Permit Fees”). (v) The value of any fuel stored on the Premises, if any, at the price then charged by Seller’s supplier, including any taxes. (vi) water charges and sewer rents, if any, on the basis of the lien period for which assessed, except that if there is a water meter on the Premises, apportionment at the Closing shall be based on the last available reading, subject to adjustment after the Closing when the next reading is available. (b) Immediately after Closing, Seller shall make available at its offices, all records, contracts, receipts for deposits, unpaid bills, and other papers or documents which pertain to the Property together with all keys and other items, if any, used in the operation of the Property. Except as otherwise expressly set forth in this Agreement, Seller makes no representations regarding the existence or adequacy of such documents or items for use in management or operation of the Property. The foregoing shall not include the separate books, records, correspondence, and other documentation of Seller located at its offices. After the Closing, Seller shall have the right to inspect the books and records of the Property for any purpose reasonably related to Seller's prior ownership of the Property. For purposes of all prorations provided for herein, Seller shall be responsible for ~~any costs associated therewith~~ all days up to and including the day immediately prior to the Closing ~~Date~~ Date, and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) all days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein grantedthereafter. (c) ~~Purchaser shall make arrangements with the pertinent telephone companies so that~~ Except as otherwise expressly provided in this Agreement (including Section 25 hereof), all ~~existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date~~ pro-rations provided for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller herein shall be ~~entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing~~final. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (P&f Industries Inc)

Prorations. ~~13.1~~12.1. Rents (exclusive of delinquent rents, but including prepaid rents); ~~prepaid associations dues,~~ refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of ~~6% of prorated rents credited to Purchaser~~5%; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the ~~tenants~~ Tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to against the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. ~~The Purchaser shall assume Seller's obligations under~~ If the ~~Seller's existing~~ amount of current real estate ~~tax consulting agreements with respect to~~ or personal property taxes is not then ascertainable, the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) adjustment thereof shall be ~~treated as a portion~~ on the basis of 105% of the ~~real estate~~ most recent ascertainable tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Datebill(s). All prorations ~~described~~ will be xxxal except as to delinquent rent referred to in Paragraph 12.2 below. 12.2. All rents collected by Purchaser shall first be applied to current rent due from the applicable tenant and then to any rent in arrears for said tenant at closing ("Delinquent Rent"). Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Delinquent Rents hereunder to Seller. Seller retains the right to conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Delinquent Rents reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Delinquent Rents and the cost of performing Seller's audit. Paragraph 12.2 of this Agreement ~~(except prorations for real and personal property taxes which~~ shall ~~be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at~~ survive the Closing and ~~to correct any errors made at~~ the ~~Closing with respect to such prorations; provided, however, that such prorations shall be deemed final~~ delivery and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions recording of the ~~preceding sentence shall survive the Closing~~deed. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale (Balcor Equity Properties LTD-Viii)

Prorations. ~~13.1. Rents~~ 5.4.1 The following shall be prorated between Seller and Purchaser as of 12:01 a.m. on the Closing Date (~~exclusive~~ on the basis of ~~delinquent~~ the actual number of days elapsed over the applicable period): (a) All real estate taxes, water charges, sewer rents, ~~but including~~ vault charges and assessments on the Property on the basis of the fiscal year for which assessed. In no event shall Seller be charged with or be responsible for any increase in the taxes on the Property resulting from the sale of the Property or from any improvements made or leases entered into on or after the Closing Date. If any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with Purchaser assuming the obligation to pay any installments due after the Closing Date). (b) Subject to this Section 5.4.1(b), all fixed rent and regularly scheduled items of additional rent under the Leases, and other tenant charges actually received. Seller shall deliver or provide a credit in an amount equal to all prepaid ~~rents); prepaid associations dues,~~ rentals for periods after the Closing Date and all refundable security deposits (~~which will be assigned~~ to the extent the foregoing were made by tenants under the Leases and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are ~~reimbursable by the tenants for the period~~ not applied or forfeited prior to the Closing Date ~~less any amount previously paid by~~ in accordance with the ~~tenants shall be credited~~ terms of the respective Leases) to ~~Seller; and other similar items shall be adjusted ratably as of 11:59 p.m.~~ Purchaser on the Closing Date~~, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data~~. Seller shall ~~pay~~ deliver to Purchaser at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any ~~such utilities (so long as no more than thirty (30) days in advance~~ tenant security deposits which are held in the ~~ordinary course~~ form of ~~business), then Purchaser shall be charged its portion~~ letters of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2credit. Rents which are delinquent as of the Closing Date shall not be ~~prorated~~prorated on the Closing Date. ~~Instead,~~ Purchaser shall include such delinquencies in its normal billing and shall diligently pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Lease). To the extent ~~that~~ Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to receives rents on or after the Closing Date, ~~provided~~ such payments shall be applied first toward the rents for the month in which the Closing occurs (and prorated between Purchaser and Seller accordingly), second, to the rents that shall then be due and payable to Purchaser for the period of time following the month in which Closing occurs, and third to any unpaid rents owed to Seller ~~shall~~ for the period of time prior to the month in which Closing occurs, with Seller’s share thereof being held by Purchaser in trust for Seller and promptly delivered to Seller by Purchaser. Purchaser may not ~~agree~~ waive any delinquent rents or modify a Lease so as to reduce ~~rents~~ or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive a share of ~~time after Closing~~ charges or amounts without first obtaining Seller’s written consent, which consent may be given or withheld in ~~order to induce any tenants to pay delinquent rents~~Seller’s sole and absolute discretion. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have hereby reserves the right to ~~retain~~ pursue any ~~portion~~ remedy against any tenant owing delinquent rents and any other amounts to Seller (but shall not be entitled to seek to terminate any lease or any tenant’s right to possession), which right shall include the right to continue or commence legal actions or proceedings against any tenant. Delivery of the Assignment and Assumption of Leases shall not constitute a waiver by Seller of such right, and such right shall survive the Closing. Purchaser shall reasonably cooperate with Seller in any collection efforts hereunder (but shall not be required to litigate or declare a default under any Lease). With respect to delinquent rents and any other amounts or other rights of any ~~security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though~~ kind respecting tenants who are no longer tenants of the ~~tenant is delinquent in paying rent~~ Property as of the Closing Date~~. 13.3. To the extent it is reasonably possible for the Seller to do so~~, ~~the~~ Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein grantedretain all rights relating thereto. (c) ~~Purchaser shall make arrangements with~~ All income and operating expenses customarily apportioned between sellers and purchasers of real estate properties similar to the ~~pertinent telephone companies so that all existing telephone directory listings~~ Property and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and located in the ~~event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of~~ same geographic area as the ~~cost of such listing and/or advertisement attributable to the period after Closing~~Property. (d) ~~In the event any third party (such as telephone company~~ Charges and payments under Assumed Contracts or ~~billboard company) makes a separate charge for the use of such listings~~ permitted renewals or ~~advertising subsequent~~ replacements thereof assigned to Purchaser pursuant to the ~~Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit~~ Assignment and Assumption of ~~the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)~~Contracts. (e) ~~Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used~~ Any fees or licenses prepaid by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property Seller for which Purchaser ~~continues~~ will receive credit or benefit following Closing, including, without limitation, fees for licenses which are transferred to ~~use~~ Purchaser at the ~~existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days~~Closing and annual permit and inspection fees. (f) ~~If Purchaser continues to use said logos or trade names beyond~~ Utilities, including, without limitation, telephone, steam, electricity and gas, on the ~~period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws~~ basis of the ~~state where~~ most recently issued bills therefor, subject to adjustment after the Closing when the next bills are available, or if current meter readings are available, on the basis of such readings. (g) Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property ~~is located~~ if the same are assigned to ~~prevent such unauthorized use or~~ Purchaser at the Closing, which shall be credited in their entirety to ~~recover any damages authorized by such laws~~Seller. (h) Intentionally Deleted. (i) Intentionally Deleted. (j) Intentionally Deleted.

Appears in 1 contract

Samples: Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.)

Prorations. ~~13.1~~12.1. Rents (exclusive of delinquent rents, but including prepaid rents); ~~prepaid associations dues,~~ refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; ~~management fees in the amount of 6% of prorated rents credited to Purchaser;~~ real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants and similar items shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to against the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by ~~Purchaser~~Purchaser and Assessments payable in installments which are attributable to the period of time prior to Closing shall be paid by Seller. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. ~~The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect~~ All prorations will be final except as to ~~the Properties, i.e., those agreements which Seller has entered into with firms who are entitled~~ delinquent rent referred to ~~a commission based on services rendered and the extent to which they are able to achieve a reduction~~ in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing DateParagraph 12.2 below. 12.2. All ~~costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of~~ basic rent paid following the Closing Date ~~so that Seller shall be responsible for~~ by any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions tenant of the ~~preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser~~ Property who is ~~able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent~~ indebted under a lease for basic rent ~~attributable to a tenant's occupancy of a portion of the Real Property~~ for any period prior to ~~the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to~~ and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before including the Closing Date ~~and said Lease is not assigned to~~ after the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) payment to Purchaser at of all current basic rent shall be deemed a "Post-Closing ~~a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller,~~ Receipt" until such time as all such indebtedness is paid in ~~place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:~~ full. Within ten (~~a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180~~10) days ~~subsequent to the date when the public telephone directory pertaining to~~ following each ~~Property is published subsequent to the~~ receipt by Purchaser of a Post-Closing ~~Date. During such period~~Receipt, Purchaser shall ~~have~~ pay such Post-Closing Receipt to Seller, subject to proration for the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinmonth of Closing. Purchaser shall ~~not~~ use ~~the existing logos or trade name on stationery~~its best efforts to collect all amounts which, ~~business cards~~upon collection, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovewould constitute Post-Closing Receipts hereunder. ~~In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs~~ Within 120 days after ~~the date hereof but before~~ the Closing Date, Purchaser shall ~~have~~ deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to ~~place a listing and/or advertisement in such publication~~ conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's ~~sole cost~~ books and ~~expense. Such listing and/or advertisement may list~~ records to verify the ~~Purchaser's name~~ accuracy of the Post-Closing Receipts reconciliation statement and ~~telephone number~~upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of will pay the cost of ~~such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use~~ performing Seller's audit. Paragraph 12.2 of ~~such listings or advertising subsequent to~~ this Agreement shall survive the Closing ~~Date, then Purchaser shall be responsible to pay same subsequent to~~ and the ~~Closing Date (but no such payment shall accrue to the benefit~~ delivery and recording of the ~~Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)~~deed. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale (Balcor Realty Investors 84)

Prorations. ~~13.1~~4.8.1. ~~Rents~~ All collected rents and other income (~~exclusive of delinquent rents~~including pet deposits and advance rentals) and all operating expenses with respect to the Property for the month in which the Closing occurs, ~~but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to~~ and ~~assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser;~~ real estate and personal property taxes and other assessments with respect to the Property for the year in which Closing occurs, shall be prorated as of the close of business of the day immediately preceding the Closing Date. Rent collected by Purchaser on or after the Closing Date, shall be applied first to any current rent due, with any additional amount applied then to pay any arrearages (in inverse order/most recent arrearages paid first) and any such amounts owed to Seller to be remitted to Seller within ten (10) days of receipt. Purchaser shall include in Purchaser’s rent billing statements to tenants, for a ~~"net" basis~~ period of one (~~i.e. adjusted for all tenants' liability~~1) year after the Closing, a statement indicating such tenant’s corresponding arrearages, if any, ~~for such items); operating expenses which are reimbursable by the tenants for~~ with respect to any unpaid rents attributable to the period prior to the ~~Closing Date less any amount previously paid~~ Closing. All rent collected by the ~~tenants shall be credited~~ Seller prior to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, ~~and the Purchaser shall pay the utility bills therefor~~ for ~~all~~ rental periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing ~~Date~~ (i.e., prepaid rent), shall be paid ~~by Purchaser~~to Purchaser at Closing. If the amount of any item to be adjusted is not ascertainable on the Closing Date, the item shall be prorated by the Purchaser and Seller based on the best available information. Those items shall be reprorated as promptly after the Closing as possible. Any errors or omissions in computing the prorations at the Closing shall be corrected promptly. The obligation to reprorate shall survive for a period of eight (8) months after the Closing. Any payments due as a result of reproration shall be paid within ten (10) days of the ~~items to~~ reproration. 4.8.2. If the Closing occurs before the tax xxxx for the year of closing is available, taxes shall be prorated using the taxes paid in the prior year. After the tax xxxx is ~~not then ascertainable~~available, the ~~adjustments thereof~~ taxes shall be reprorated at the request of the Seller or Purchaser based on the ~~basis~~ tax xxxx for the year of closing. Any amounts due as a result of the ~~most recent ascertainable data~~reproration shall be paid within ten (10) days of the reproration. ~~The~~ Special assessment liens, if any, that are a charge or lien on the Property or that are due and payable at the time of Closing shall be paid by Seller. 4.8.3. To the extent possible, Purchaser shall ~~assume Seller's obligations under~~ be responsible for arranging all utility service and insurance coverage for the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction Project in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated its own name commencing as of 12:01 a.m. on the Closing Date. ~~All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that~~ Seller shall be responsible for ~~any costs associated therewith~~ all utility charges accrued prior to the Closing Date and ~~Purchaser~~ Seller shall receive a refund of all utility deposits and insurance premiums. If a change in utility service cannot be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated effected on the Closing Date~~) shall~~ , utility charges will be ~~subject to post-closing adjustments~~ estimated and prorated as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closingprovided in Section 4.8.1. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Sale Agreement (America First Apartment Investors Inc)

Prorations. ~~13.1~~7.1 The following shall be apportioned and adjusted between Seller and Purchaser as of 11:59 p.m. (South Carolina time) the day preceding the Closing Date, except as otherwise specified, provided that Seller shall pay, at or prior to the Closing, all installments or amounts of items which are being apportioned under this Section which become due and payable prior to the Closing Date: (a) rents and additional rents under or in respect of the Tenant Leases, as, when and to the extent actually collected, on the basis of the period for which payable under the applicable Tenant Lease and apportioned on the basis of the actual number of days in such period; (b) real property taxes, water and sewer rents and charges; vault taxes or charges, elevator inspection charges and other like and similar municipal taxes and charges, each on the basis of the fiscal year or other period for which assessed, and apportioned upon the basis of the actual number of days in such year or period. ~~Rents~~ Taxes shall be apportioned based on the most recent available tax bills, with a post-Closing adjustment to be made as soon as practicable after the tax bills are issued for the year in which the Closing occurs. Seller shall not be responsible for any portion of any increase in taxes on the Property attributable to an increase in assessed valuation due to the sale contemplated herein; (~~exclusive~~ c) subject to Section 7.5, electric, gas, steam and other public utility charges for services furnished to the Property, on the basis of ~~delinquent rents, but including prepaid rents~~the actual number of days in any period covered by the charge being apportioned (except that no apportionment shall be made for any of such items as are furnished and charged by the applicable utility company directly to Tenants under the Tenant Leases); ~~prepaid associations dues, refundable security deposits~~ and (~~which will~~ d) charges under the Contracts to be assigned by Seller to Purchaser in accordance with Section 14.4, on the basis of the actual number of days in any period covered by the charge being apportioned. 7.2 Seller shall pay all unpaid commissions, fees and ~~assumed~~ other charges due on or prior to the Closing to real estate brokers or other Persons with respect to any Tenant Lease executed prior to the Closing Date. If the Closing occurs, then Purchaser shall be responsible for commissions, fees, or other charges due to real estate brokers not employed by or affiliated with Seller with respect to Tenant Leases, and any renewals, extensions and expansions thereof executed on or after the Closing Date by Purchaser. 7.3 If the Closing occurs before a new real property or other applicable tax rate or charge of a Governmental Entity is fixed, then the apportionment of such tax or charge at the Closing shall be based upon the tax rate for the immediately preceding fiscal period applied to the latest assessed valuation. Promptly after the new tax rate has been fixed, the apportionment of such tax or charge made at the Closing shall be recalculated and any reimbursement owed by Purchaser ~~and credited~~ to ~~Purchaser at Closing); fuels; prepaid operating expenses; management fees~~ Seller or Seller to Purchaser, as the case may be, shall be paid promptly after such recalculation. 7.4 If as of the Closing any Tenant under a Tenant Lease is in arrears in the ~~amount~~ payment of 6% rent, or other charges, payments received from such Tenant after the Closing shall be applied in the following order of ~~prorated~~ priority: first, to current rents ~~credited~~ and other sums due Purchaser as the current owner of the Property and landlord under the Tenant Leases, and the balance to ~~Purchaser; real~~ any delinquent sums owing to Seller under the Tenant Leases. If any payments from a Tenant received by Purchaser or Seller after the Closing are payable to the other party by reason of this Section, then the appropriate sum shall be promptly paid to the other party. After the Closing, Seller may bring, in Seller’s name and ~~personal property taxes prorated on~~ at Seller’s expense, an action against any delinquent Tenant to collect rent, additional rent, or other payments due Seller for a ~~"net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the~~ period prior to the Closing Date, together with the cost of collection thereof; but in no event shall Seller seek any remedy other than collection of funds from the particular Tenant. Seller shall not interfere with other Tenants of the Property and shall comply with all applicable laws in connection with its collection of delinquent sums pursuant to the terms of this paragraph. Notwithstanding anything contained herein to the contrary, nothing shall prevent Purchaser from commencing eviction proceedings against any Tenant for non-payment of current rents as they become due. 7.5 The apportionment of utility charges shall be made upon the basis of charges shown on the latest available bills of such utilities. The charges shown on such available bills for periods prior to the Closing Date ~~less any amount previously~~ shall be paid by Seller, and for the ~~tenants~~ period from the date of each such last available utility xxxx to the Closing Date an apportionment shall be ~~credited~~ made based on the amount charged for the period covered by such last available xxxx. Notwithstanding the foregoing, Seller will endeavor to ~~Seller;~~ cause the respective utility companies to read their meters or fix their charges to the Closing Date, in which event Seller shall pay such charges, when billed, to the Closing Date, and ~~other similar items~~ Purchaser shall pay such charges from and after the Closing Date and/or promptly reimburse Seller for any such charges paid by Seller for any period subsequent to the Closing Date. 7.6 At the Closing, Seller shall be ~~adjusted ratably as~~ entitled to the return of ~~11:59 p.m.~~ all deposits or escrows held for Seller’s account at or by any public utility company in connection with utility services furnished to the Property, and shall receive a credit against the Purchase Price for any such amounts remaining on deposit or in escrow after Closing. Prior to the Closing Date, Seller shall notify all such public utilities in writing of the applicable transfer of service. 7.7 If any item covered by this Article cannot be apportioned because the same has not been (or cannot be) fully ascertained on the Closing Date, or if any error has been made with respect to any apportionment, then such item shall be apportioned (or corrected, as applicable) as soon as the same is fully ascertained, but, except for taxes and ~~credited~~ assessments, no later than sixty (60) days after the Closing Date, and shall be paid within twenty (20) days thereafter by the appropriate party. Any Property-related bills received after Closing related to the ~~balance~~ period prior to Closing shall be promptly paid by Seller. 7.8 Real estate tax refunds and credits received after the Closing which are attributable to the fiscal tax year during which the Closing Date occurs shall be apportioned between Seller and Purchaser, pursuant to this Article. 7.9 If, as of the ~~cash due at Closing. Utilities~~Closing Date, ~~including water, sewer, electric, and gas~~ the Property shall be ~~prorated at Closing based on the most recent ascertainable data.~~ (or shall have become) subject to a special or local assessment or charge of any kind (whether or not yet a lien), then Seller shall pay all installments thereof attributable to periods prior to the Closing Date or due and payable prior to the Closing Date; provided, however, any installment thereof attributable to a period from and after the Closing Date shall be apportioned at the Closing in the same manner as for taxes under Section 7.1(b). Purchaser shall be responsible for all installments of such assessment attributable to the period from and after the Closing Date. 7.10 In the event either Purchaser or Seller shall owe the other any money as a result of the terms of this Article 7 (whether at Closing or thereafter), then the ~~bills therefor for the period to and including the Closing, and the Purchaser~~ party owing such money shall pay the ~~utility bills therefor for all periods subsequent thereto. If~~ other party such money promptly, as soon as the ~~utility company will not issue separate bills~~amount is finally determined. 7.11 At Closing, ~~the~~ Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered equal to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of ~~any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations~~ Deposits required under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction Tenant Leases in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent effect as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements7.12 This Article 7, and ~~telephone numbers, at each~~ all rights and duties of the ~~Properties pursuant to~~ parties hereunder, shall survive the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.)

Prorations. ~~13.1.~~ Rents actually collected for the calendar month in which the Closing occurs (exclusive of ~~delinquent rents~~Delinquent Rent, as hereinafter defined, but including prepaid ~~rents~~rents covering a period subsequent to Closing); ~~prepaid associations dues, refundable security deposits (which will be assigned to~~ water and ~~assumed by Purchaser and credited to Purchaser at Closing)~~other utility charges; fuels; prepaid ~~operating expenses; management fees in~~ revenues and expenses covering a period subsequent to Closing (including payments made to Seller arising out of or related to the ~~amount of 6% of prorated rents credited to Purchaser~~OPA (defined below), the Redevelopment Plan (defined below) or any affordable housing regulations); real and personal property taxes ~~prorated on a "net" basis~~ (~~i.e. adjusted for all tenants' liability, if any, for such items~~“Property Taxes”)~~; operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller~~; and other similar revenue and expense items shall be adjusted ratably as of 11:59 ~~p.m.~~ P.M. Pacific Time on the Closing Date (“Proration Date”), and credited or debited to the balance of the cash due at Closing. ~~Utilities, including water, sewer, electric,~~ All regular and ~~gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for~~ supplemental taxes and assessments attributable to the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent prior to the Closing Date shall be ~~paid by~~ the responsibility of Seller. All regular and supplemental taxes and assessments attributable to the period after the Closing Date shall be the responsibility of Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the ~~adjustments~~ adjustment thereof shall be on the basis of the most recent ascertainable data. ~~The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with~~ With respect to Property Taxes, if Closing occurs before the ~~Properties~~current fiscal year’s tax bills are available, ~~i.e., those agreements which Seller has entered into with firms who are entitled to a commission~~ the proration will be based ~~on services rendered~~ upon the previous fiscal year’s tax xxxx and the ~~extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any)~~ proration shall be ~~treated as a portion~~ readjusted and settled by Seller and Purchaser within ten (10) business days after such tax xxxx is issued. If special assessments have been levied against the Property for improvements, then the amount of ~~the real estate tax liability~~ any installments which are attributable to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith periods on or prior to the Closing Date ~~and Purchaser~~ shall be ~~responsible for any costs associated therewith arising from~~ paid by the Seller; and the amount of installments which are attributable to periods after the Closing ~~Date. All prorations described in this Agreement (except prorations for real and personal property taxes which~~ Date shall be ~~deemed final as~~ paid by the Purchaser. If any charges, expenses or other items to be prorated hereunder are unavailable on the Closing Date, a readjustment will be made within ten (10) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) business days following ~~Closing, at which time all prorations shall be deemed final~~ the availability of accurate bills and ~~not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing~~figures. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale (Behringer Harvard Multifamily Reit I Inc)

Prorations. ~~13.1. Rents~~ (~~exclusive of delinquent rents~~a) All real property ad valorem taxes, ~~but including prepaid rents); prepaid associations dues~~personal property taxes, ~~refundable security deposits~~ special taxes and assessments shall be prorated (~~which will be assigned to and assumed by~~ employing a 365-day year) between Purchaser and ~~credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount~~ Seller as of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date ~~less any amount previously paid by~~ (as defined below) based upon the ~~tenants shall be credited to Seller;~~ current property assessment. If such assessment is not available for the year in question, such taxes and ~~other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas~~ assessments shall be prorated at Closing based on the ~~most recent ascertainable data. Seller shall pay at Closing~~ previous year’s tax bill and promptly reprorated when the ~~bills therefor for~~ amount thereof can be ascertained. (b) All expenses, including without limitation, utility fees and deposits and all maintenance charges and payments under existing recorded reciprocal easements/servitudes agreements and/or similar agreements, with respect to the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser Property shall be ~~charged its portion~~ allocated between Seller and Purchaser as of ~~such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore,~~ the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and SellerClosing Date. Seller shall be ~~reimbursed at~~ responsible for all such expenses for the period of time up to but not including the Closing Date, except for any ~~utility deposits~~ such expenses incurred by or at the direction of Purchaser in connection with Purchaser’s inspection of the Property, all of which expenses incurred by or at the ~~Seller has deposited with any utility company and which will be assigned to the~~ direction of Purchaser ~~at Closing. Assessments payable in installments which are due subsequent to the Closing Date~~ shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for ~~any costs associated therewith arising from~~ all such expenses for the period of time from, after, and ~~after~~ including the Closing Date. ~~All prorations described~~ If accurate allocations cannot be made at Closing because current bills are not then available (for example, as in ~~this Agreement (except prorations for real and personal property taxes which~~ the case of utility bills), the parties shall ~~be deemed final as prorated~~ allocate such expenses at Closing on the ~~Closing Date) shall be~~ best available information, subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions prompt adjustment upon receipt of the ~~preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as~~ final bill or other evidence of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action applicable income or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein grantedexpense. (c) ~~Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings~~ All prorations and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right allocations made pursuant to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller this Section 4 shall be ~~entitled to~~ determined by allocating the tax, assessment or other expense on a ~~pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing~~per acre basis. (d) In If any errors or omissions are made regarding adjustments and prorations pursuant to this Section 4, the ~~event~~ parties shall make the appropriate corrections promptly upon the discovery thereof. If any ~~third party (such as telephone company~~ estimates are made at the Closing regarding adjustments or ~~billboard company) makes a separate charge for~~ prorations, the ~~use of such listings~~ parties shall make the appropriate correction promptly when accurate information becomes available. Any corrected adjustment or ~~advertising subsequent~~ proration shall be paid in cash to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)party entitled thereto. (e) ~~Purchaser's temporary license~~ All obligations to adjust prorations set forth in this ~~paragraph~~ Section 4 shall ~~expire on~~ survive the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws Closing of the ~~state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws~~transaction for a period of nine (9) months.

Appears in 1 contract

Samples: Purchase and Sale Agreement

Prorations. ~~13.1. Rents~~ 5.4.1 The following shall be prorated between the Sellers and Purchaser as of 12:01 a.m. on the Closing Date (~~exclusive~~ on the basis of ~~delinquent~~ the actual number of days elapsed over the applicable period regardless when payable): (a) All real estate taxes, water charges, sewer rents, ~~but including~~ vault charges and assessments on the Property on the basis of the fiscal year for which assessed. In no event shall Sellers be charged with or be responsible for any increase in the taxes on the Property resulting from the sale of the Property or from any improvements made or leases entered into on or after the Closing Date. If any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with Purchaser assuming the obligation to pay any installments due after the Closing Date). (b) Subject to this Section 5.4.1(b), all fixed rent and regularly scheduled items of additional rent under the Leases, and other tenant charges if, as and when received. Sellers shall deliver or provide a credit in an amount equal to all prepaid ~~rents); prepaid associations dues,~~ rentals for periods after the Closing Date and all refundable cash security deposits (~~which will be assigned~~ to the extent the foregoing were made by tenants under the Leases and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are ~~reimbursable by the tenants for the period~~ not applied or forfeited prior to the Closing ~~Date less any amount previously paid by the tenants shall be credited~~ Date) to ~~Seller; and other similar items shall be adjusted ratably as of 11:59 p.m.~~ Purchaser on the Closing Date. As to any tenant security deposits held in the form of letters of credit or other financial instruments (the “Non-Cash Security Deposits”), the applicable Seller shall (i) deliver to Purchaser at Closing such original Non-Cash Security Deposits, and ~~credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric,~~ (ii) execute and ~~gas shall be prorated~~ deliver at Closing ~~based~~ such other instruments as the issuer of such Non-Cash Security Deposits shall reasonably require in order to cause the named beneficiary under such Non-Cash Security Deposits to be changed to Purchaser; provided that such instruments do not impose any liability on ~~the most recent ascertainable data~~Sellers. ~~Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the~~ Purchaser ~~shall pay the utility bills therefor for all periods subsequent thereto. If the utility company~~ will not ~~issue separate bills, the Purchaser shall~~ receive a credit against the Purchase Price for ~~Seller's portion and shall pay~~ the ~~entire utility bill after Closing. If Seller hxx xre~~Non-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2Cash Security Deposits. Rents which are delinquent as of the Closing Date shall not be ~~prorated~~prorated on the Closing Date. ~~Instead~~Purchaser shall include such delinquencies in its normal billing and shall diligently pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Lease). To the extent Purchaser receives rents on or after the Closing Date, such payments shall be applied first toward the rents for the month in which the Closing occurs, second to the rents that shall then be due and payable to Purchaser, and third to any delinquent rents owed to the applicable Seller, with such Seller’s share thereof being held by Purchaser in trust for such Seller and promptly delivered to such Seller by Purchaser. Purchaser may not waive any delinquent rents nor modify a Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which the applicable Seller is entitled to receive a share of charges or amounts without first obtaining such Seller’s written consent, which consent may be given or withheld in such Seller’s sole and absolute discretion. Sellers hereby reserve the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to a Seller (but shall not be entitled to terminate any lease or any tenant’s right to possession), which right shall include the right to continue or commence legal actions or proceedings against any tenant; provided, however, that Sellers shall not be entitled to exercise such right until the expiration of the six (6) month period following the Closing. Delivery of the Assignment and Assumption of Leases shall not constitute a waiver by Sellers of such right, and such right shall survive the Closing. Purchaser shall xxxx and attempt to collect such delinquent rent in the ordinary course of business, but shall not be obligated to engage a collection agency or take legal action to collect any delinquencies. With respect to delinquent rents and any other amounts or other rights of any kind respecting tenants who are no longer tenants of the Property as of the Closing Date, Sellers shall retain all rights relating thereto. Any rents received by Sellers applicable to the period after the Closing shall be promptly remitted to Purchaser. (c) If any tenant of the Property is obligated to pay percentage rent based upon the calendar year or lease year in which the Closing Date occurs (the “Percentage Rent Year”), Purchaser shall, within thirty (30) days after receipt of such payment with respect to the Percentage Rent Year, remit to the applicable Seller that portion which is equal to the number of days which elapsed between the commencement date of the Percentage Rent Year for each such tenant and the Closing Date, divided by the total number of days in such Percentage Rent Year. If a Seller has received payments of percentage rent based on any Percentage Rent Year in which the date of Closing occurs, in excess of such Seller’s share as calculated as set forth above in this Section 5.4.1(c), it shall promptly pay such excess to Purchaser. In the event that the Leases require the reconciliation of additional rent “pass-throughs” to the landlord for common area maintenance charges, real estate taxes or other operating expenses (collectively, the “Expenses”), Purchaser shall perform all of the obligations of the landlord under the Leases with respect to such reconciliations for the year of Closing as and when required by the terms of the Leases and provide the applicable Seller with the results of such reconciliations no later March 31st of the calendar year succeeding the Closing Date. If such results reflect the underpayment of Expenses by tenants of the Property for the year of Closing, Purchaser shall xxxx the appropriate amounts to such tenants in accordance with the terms of their leases and remit to the applicable Seller its prorata share of the amount collected from the tenants within thirty (30) days of Purchaser’s collection of the same. If such results reflect the overpayment of Expenses by tenants of the Property for the year of Closing, Purchaser shall deliver to the applicable Seller an invoice from Purchaser together with evidence reasonably satisfactory to such Seller indicating that such sums are due to such tenants. The applicable Seller shall pay Purchaser such Seller’s prorata share of the amounts due to such tenants within thirty (30) days of Purchaser’s demand, provided that such Seller shall have no obligation to reimburse Purchaser for any sums not invoiced on or before July 1st of the calendar year succeeding the Closing Date. Notwithstanding the foregoing, if, as of the Closing, a Seller has received additional rent payments in excess of the amount that the tenants would be required to pay, based on the actual Expenses as of the Closing, Purchaser shall receive a credit in the amount of such excess. The provisions of this Section 5.4.2(c) shall survive the Closing. (d) All operating expenses customarily apportioned between sellers and purchasers of real estate properties similar to the Property and located in the same geographic area as the Property. (e) Charges and payments under Contracts or permitted renewals or replacements thereof assigned to Purchaser pursuant to the Assignment and Assumption of Contracts. (f) Any prepaid items, including, without limitation, fees for licenses which are transferred to Purchaser at the Closing and annual permit and inspection fees. (g) Utilities, including, without limitation, telephone, steam, electricity and gas, on the basis of the most recently issued bills therefor, subject to adjustment after the Closing when the next bills are available, or if current meter readings are available, on the basis of such readings. (h) Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if the same are assignable and are assigned to Purchaser at the Closing, which shall be credited in their entirety to the applicable Seller. (i) Personal property taxes, if any, on the basis of the fiscal year for which assessed. (j) Permitted administrative charges, if any, on those tenants’ security deposits transferred by Sellers pursuant to the Assignment and Assumption of Leases. (k) Taxes payable by Sellers relating to operations of the Property, including, without limitation, business and occupancy taxes and sales taxes, if any. (l) Such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the Property and located in the same geographic area as the Property. (a) Intentionally deleted. (b) If any of the items described in Section 5.4.1 hereof cannot be apportioned at the Closing because of the unavailability of information as to the amounts which are to be apportioned or otherwise, or are incorrectly apportioned at Closing or subsequent thereto, such items shall be apportioned or reapportioned, as the case may be, as soon as practicable after the Closing Date or the date such error is discovered, as applicable; provided that (i) with the exception of any item required to be apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to request apportionment or reapportionment of any such item at any time following the one hundred eightieth (180th) day after the Closing Date and (ii) with respect to the items required to be apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to request apportionment or reapportionment of any such item at any time following the one (1) year anniversary of the Closing Date. If the Closing shall occur before a real estate or personal property tax rate or assessment is fixed for the tax year in which the Closing occurs, the apportionment of taxes at the Closing shall be upon the basis of the tax rate or assessment for the preceding fiscal year applied to the latest assessed valuation. Promptly after the new tax rate or assessment is fixed, the apportionment of taxes or assessments shall be recomputed and any discrepancy resulting from such recomputation and any errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party reimbursed, which obligations shall survive the Closing. 5.4.3 Items to be prorated at the Closing shall include a credit to Sellers for costs and expenses incurred by Sellers in connection with any new Leases or modifications to any existing Leases entered into after the date hereof in accordance with the terms and conditions set forth in Section 7.2.3(a) of this Agreement, but only to the extent ~~that~~ such costs and expenses are approved or deemed approved by Purchaser ~~is able~~ pursuant to ~~collect said delinquencies,~~ Section 7.2.3(a) or disclosed to Purchaser in writing or in the ~~Purchaser~~ proposed lease at least three (3) Business Days prior to the expiration of the Due Diligence Period. Sellers shall be ~~entitled to receive such delinquent rent attributable to a tenant's occupancy~~ responsible for those leasing costs set forth on Exhibit E and all other brokerage and leasing commissions and tenant improvement costs for the initial term of ~~a portion of the Real Property for any period~~ all Leases entered into prior to the date of ~~Closing~~this Agreement and for any extension, ~~free from~~ renewal or expansion of any ~~claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day~~ such Lease exercised prior to the ~~Closing Date~~date of this Agreement, provided in all such instances, the term of such Lease, extension, renewal or expansion and the regularly scheduled payment of rent commences prior to the date of this Agreement (collectively, “Seller Leasing Costs”). Purchaser shall be responsible for and expressly assumes the obligation to pay all brokerage and leasing commissions, tenant improvement costs and other costs and expenses including attorney’s fees other than the Seller Leasing Costs for any new leases entered into from and after the date of this Agreement and any extension, renewal or expansion of any existing Lease exercised or entered into from and after the date of this Agreement including, without limitation amounts owed under the Brokerage Agreements, provided in all such instances, the term of such Lease, extension, or expansion or the regularly scheduled payment of rent commences from and after the date of this Agreement, provided such new leases or extensions or expansions are approved or deemed approved by Purchaser pursuant to Section 7.2.3(a) of this Agreement and provided such brokerage and leasing commissions, tenant improvement costs and other costs are disclosed to Purchaser in writing, in the applicable lease or other agreement delivered to Purchaser at the time Purchaser approves (or is deemed to have approved) such new leases, or any such Lease extensions, renewals or expansions (collectively, “Purchaser Leasing Costs”). If at the Closing any Seller has paid any Purchaser Leasing Costs, the prorations at the Closing shall include an appropriate credit to Sellers. If at the Closing there remain unpaid Seller Leasing Costs, Purchaser shall expressly assume the responsibility to pay such unpaid Seller Leasing Costs, and the prorations at the Closing shall include an appropriate credit to Purchaser. The Seller Leasing Costs set forth on Exhibit E include the estimated cost of tenant improvement work to be performed by or on behalf of the landlord pursuant to those certain contracts, each dated December 1, 2011 between One/Two Seller and Pacific Builders Inc. (the “Existing Construction Contracts”) for improvements in and around the respective premises occupied by Xxxx, Xxxxxxx and Associates, Dental Community Management, Xxxxxxx & Xxxxxxx, Family Legacy Trust, and Xxxxxx Xxxxxxxxx (the “Current Work”). Buyer acknowledges that Seller is currently negotiating additional contracts (the “Prospective Construction Contracts” and together with the Existing Construction Contracts, collectively, the “Construction Contracts”) for work to be performed in and around the respective premises occupied by Goranson, Bain, Xxxxxx & Xxxxxxxxx, L.L.C., LiquidAgents, LLC, and Lifeway Financial Corporation (the “Prospective Work” and together with the Current Work, collectively, the “TI Work”), the estimated cost of which is also reflected in the Seller Leasing Costs set forth on Exhibit E. Notwithstanding anything to the contrary herein (including, without limitation Section 7.2.2) Buyer hereby approves the Prospective Construction Contracts to be entered into by Seller prior to the Closing. If any of the TI Work is not completed prior to the Closing, Buyer shall ~~not agree~~ be entitled to ~~reduce rents for any period of time after~~ a credit at Closing in ~~order~~ the amount of the unpaid remaining TI Work pursuant to ~~induce any tenants to pay delinquent rents. Seller~~ this Section 5.4.3, and Purchaser shall ~~not have~~ assume the ~~right subsequent to Closing to seek (by legal action or otherwise~~applicable Construction Contract(s) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. ~~13.3. To the extent it is reasonably possible for the Seller to do so~~5.4.4 As provided in Section 11.1.2, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser Sellers shall be responsible ~~to pay same subsequent~~ for paying all fees, costs or commissions owing to the ~~Closing Date~~ Broker (~~but no such payment shall accrue~~ as defined in Section 11.1.2) with regard to the ~~benefit of the Seller or constitute a credit against a debt otherwise owed~~ transactions contemplated by ~~the Seller to said third party)~~this Agreement. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date 5.4.5 The provisions of this ~~temporary license set forth above, then Purchaser~~ Section 5.4 shall ~~be liable for and shall pay to~~ survive the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysClosing. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Contract of Sale (KBS Real Estate Investment Trust III, Inc.)

Prorations. ~~13.1. Rents~~ (~~exclusive of delinquent~~ a) Rents, including, without limitation, percentage rents, ~~but including prepaid rents~~if any, and any additional charges and expenses payable by tenants under Leases, all as and when actually collected (except for tenant CAM Charges (as such term is defined below)~~; prepaid associations dues~~, ~~refundable security deposits (~~which will be ~~assigned to and assumed by Purchaser and credited to Purchaser~~ prorated at ~~Closing~~Closing based on estimates of the same, all in accordance with the provisions of Section 8.5(b) below); ~~fuels~~real property taxes and assessments; water, sewer and utility charges; amounts payable under any Service Contracts or other agreements or documents; annual permits and/or inspection fees (calculated on the basis of the period covered); and any other expenses of the operation and maintenance of the Property, but specifically excluding the cost of insurance, (including, without limitation, expenses prepaid ~~operating expenses; management fees~~ by Seller and expenses already paid by Seller but which are being amortized over time by Seller and with respect to which Seller shall receive a credit at Closing in the amount of ~~6% of~~ the prepaid or unamortized portion thereof), shall all be prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately prior to Closing ~~Date~~(i.e., Buyer is entitled to the income and responsible for the expenses of the day of Closing), on the basis of a 365-day year. The preliminary estimated Closing prorations contemplated by this Section 8.5(a) shall be prepared by Seller and submitted to Buyer for review and approval on or before September 26, 2006. Buyer and its representatives shall be afforded reasonable access to Seller’s books and records with respect to back-up evidence and Seller’s work papers pertaining to such preliminary prorations to confirm the accuracy thereof. Such prorations, once agreed upon by Buyer and Seller, shall be delivered to the Title Company for purposes of making the preliminary proration adjustments at Closing, subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Buyer to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Buyer (if the preliminary prorations result in a net credit to Buyer) by increasing or reducing the cash to be delivered by Buyer in payment of the Purchase Price at the Closing. Additionally, Buyer shall reimburse Seller for the tenant improvement costs, leasing commissions, legal fees and other expenses, and ~~credited to the balance of the cash due at Closing~~free rent and other concessions, as provided in Section 7.2. ~~Utilities, including water, sewer, electric, and gas~~ Buyer shall be ~~prorated at~~ entitled the credits due Buyer from Seller, if any, as expressly set forth in Section 7.2. All rents collected after the Closing ~~based~~ shall be applied and paid as provided in this Section 8.5(a). If a tenant shall specifically designate a payment as being attributable to, or if it is readily ascertainable that a payment received from a tenant is attributable to a specific period of time or for a specific purpose, including, without limitation, for operating expenses or real estate tax payments which were not paid or were underpaid by such tenant or for reimbursement for work performed by Seller on the ~~most recent ascertainable data~~tenant’s premises, such payment shall be so applied. ~~Seller~~ If there is no such designation or if not so readily ascertainable, any payment received from a tenant after Closing shall ~~pay at~~ be deemed a payment of rent due after the Closing until the ~~bills therefor for~~ tenant is current on rents and sums due under the ~~period to and including~~ applicable Lease on or after the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any then such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date payments shall be paid ~~by Purchaser. If the amount of any of the items~~ to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent ~~that Purchaser is able~~ of any rent or other sums owing to Seller for periods prior to Closing. Buyer shall use reasonable efforts to collect ~~said delinquencies, the Purchaser shall be entitled~~ such rents and other sums owing to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) ~~The~~ On or before the Closing, Seller ~~stipulates that there is full~~ will prepare an estimate, as of the Closing, of the amounts of all taxes, insurance charges and ~~adequate consideration~~ other expenses owed by tenants under the Leases (collectively “CAM Charges”), as specified in the Leases (collectively, “Operating Expense Recoveries”) for the ~~license herein granted~~portion of calendar year 2006 during which Seller owned the Property (the “2006 Partial Year”). If the amounts collected by Seller from tenants for Operating Expense Recoveries for the 2006 Partial Year are less than the amounts that would have been owed by tenants under the tenant Leases for such items based on Seller’s estimate, Buyer will pay such difference to Seller at Closing. If the amounts collected by Seller from tenants for Operating Expense Recoveries for the 2006 Partial Year are greater than the amounts that would have been owed by tenants under the tenant Leases for such items based on Seller’s estimate, Seller will pay to Buyer at Closing such difference. A final reconciliation of the CAM Charges and Operating Expense Recoveries for the 2006 Partial Year shall be prepared by Seller, and delivered to Buyer, on or before December 31, 2006, in accordance with the requirements set forth in the Leases and as provided in this Section 8.5(b). Thereafter, Buyer shall have ten (10) business days to reasonably approve of or object to, in writing, such reconciliation. In the event that Buyer does not object in writing to Seller within such time period, the reconciliation shall be deemed final and approved by Buyer. When the reconciliation is reasonably approved by Buyer or is deemed approved by Buyer pursuant to this Section, the party owing the other party a sum of money based on such reconciliation shall pay said sum of money to the other party. With respect to any audit of any CAM Charges applicable to any period of time from and after the Closing billed to Health Net, Buyer agrees to indemnify, hold harmless and defend Seller from and against any and all amounts owing as a result of said Health Net Cam Charges audit. With respect to any audit of any CAM Charges applicable to calendar-year 2005 which were billed to Health Net (a “2005 Health Net CAM Audit”), Seller agrees to indemnify, hold harmless and defend Buyer from and against any and all amounts owed to Health Net as a result of said 2005 Health Net CAM Audit (collectively, “Audit Claims”), provided, however, that the indemnity described in this sentence shall survive only for the period of time that Health Net has the right to conduct a 2005 Health Net CAM Audit pursuant to the express provisions of the Health Net Lease of the Property, provided, however, that if a 2005 Health Net CAM Audit has been commenced within such allotted time period, such indemnity shall survive until such 2005 Health Net CAM Audit has been resolved (the “Audit Survival Period”). Any such Audit Claim which Buyer may have at any time against Seller, whether known or unknown, which is not specifically asserted by written notice to Seller within such time period shall not be valid or effective, and neither Seller nor any Seller Related Parties shall have any liability with respect thereto. In connection with any 2005 Health Net CAM Audit, Seller and Buyer shall each have the right to participate in any such audit, and each such party shall cooperate with the other in connection therewith. The amount of any cash security deposits held by Seller under Leases shall be credited against the Purchase Price (and Seller shall be entitled to retain such cash security deposits). Seller shall receive credits at Closing for the amount of any utility or other similar deposits with respect to the Property and to the extent practical, shall pay to the applicable utility providers all utility charges payable with respect to the Property for the period prior to Closing. Buyer shall cause all utilities to be transferred into Buyer’s name and account at the time of Closing. Seller and Buyer hereby agree that if any of the aforesaid prorations and credits cannot be calculated accurately on the Closing Date or in the case of rents or other charges received from tenants, which have not been collected as of the Closing Date, then the same shall be calculated as soon as reasonably practicable (except that the CAM Charges and Operating Expense Recoveries shall be calculated within the timeframes described above) but in any event within sixty (60) days after the Closing Date or the date that such amounts have been collected by either party, and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall pay said sum to the other party within thirty (30) days thereafter. Notwithstanding the foregoing, in the event that either party collects rent or other charges from tenants that were not collected at Closing, such party owing the other party a sum of money with respect to such rent or other charges from tenants, shall use commercially reasonable efforts to pay said sum to the other party within five (5) business days after receipt of such sum. Any amounts not paid within ten (10) days after receipt of such sum shall bear interest from the date actually received by the payor until paid at the greater of (i) the rate of ten percent (10%) per annum or (ii) the prime rate (or base rate) reported from time to time in the “Money Rates” column or section of The Wall Street Journal as being the base rate on corporate loans at larger United States money center commercial banks plus two (2) percent. Upon request of either party, the parties shall provide a detailed and accurate written statement signed by such party certifying as to the payments received by such party from tenants from and after Closing and to the manner in which such payments were applied, and shall make their books and records available for inspection by the other party during ordinary business hours upon reasonable advance notice. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before If the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisementoccurs, Seller shall ~~be entitled to a pro-rata credit~~ pay (i) the title insurance premium for ~~such~~ the CLTA portion of the ~~cost of such listing and/or advertisement attributable~~ Title Policy, (ii) any costs incurred in recording the Deed or any other instruments with respect to the ~~period after~~ transfer contemplated herein, and (iii) all costs to satisfy, release and discharge any Seller’s Liens. If the Closing occurs, Buyer shall pay (i) the costs of extended coverage and any endorsements to the Owner’s Policy, (ii) the costs, if any, to obtain the updated Survey or a new survey, (iii) all state, county and city transfer taxes, if any, payable in connection with the consummation of the sale of the Property to Buyer as contemplated herein, and (iv) all fees, costs, or expenses in connection with Buyer’s due diligence reviews hereunder. Any other closing costs shall be allocated in accordance with local custom as determined by the Title Company. Any escrow fees shall be split equally between Seller and Buyer. The parties will execute and deliver any required transfer or other similar tax declarations to the appropriate governmental entity at Closing. (d) ~~In the event any third party (such as telephone company or billboard company) makes a separate charge~~ Any percentage rent for the ~~use of such listings or advertising subsequent to the~~ rental periods including Closing ~~Date, then Purchaser~~ shall be ~~responsible to pay same subsequent to~~ prorated upon receipt, based upon the ~~Closing Date (but no such payment shall accrue to~~ tenant’s sales for the ~~benefit~~ portion of the ~~Seller or constitute a credit against a debt otherwise owed by~~ lease year allocable to Seller’s and Buyer’s respective ownership of the ~~Seller to said third party)~~Property. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date The provisions of this ~~temporary license set forth above, then Purchaser~~ Section 8.5 shall ~~be liable for and shall pay to~~ survive the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysClosing. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Purchase and Sale (Hines Real Estate Investment Trust Inc)

Prorations. ~~13.1. Rents~~ 5.2.1 All revenues, including without limitation, rentals, prepaid rentals and prepaid payments (~~exclusive of delinquent rents~~collectively, ~~but including prepaid rents~~"Rent")~~; prepaid associations dues~~, ~~refundable~~ shall be prorated on the basis that Buyer shall receive a credit for all Rent which Seller has actually received before the Closing which is allocable to the period after the Closing and for all security deposits held by Seller (including interest thereon, as required by law). Seller shall not receive a credit for any Rent Seller has not received as of the Closing which ~~will be assigned~~ is allocable to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the ~~Closing Date less~~ Closing. If, after Closing, Buyer collects any ~~amount previously~~ Rent applicable to periods prior to Closing, such Rent shall first be applied to Rent due for the current period, if any, and the balance shall be promptly paid by ~~the tenants shall be credited~~ Buyer to Seller~~; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date~~. If, ~~and credited~~ after Closing, Seller collects any Rent applicable to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including rental periods after the Closing, ~~and the Purchaser~~ Seller shall promptly pay the ~~utility bills therefor for all periods subsequent thereto~~same to Buyer. ~~If the utility company will not issue separate bills~~For such purposes, the ~~Purchaser~~ period for which Rent is applicable shall ~~receive a credit against~~ be the ~~Purchase Price~~ one designated in writing by the person paying such Rent or, if there is no such designation, the Rent shall be applied first to Rent due for ~~Seller's portion and shall pay~~ the ~~entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance~~ current period, if any, with the balance applied in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any inverse order of the ~~items~~ Rent payments due from such Tenant. 5.2.2 All expenses, including without limitation, utilities and all other expenses to ~~be prorated is not then ascertainable,~~ operate the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements Property shall be prorated as of the ~~Closing Date so that Seller~~ Closing. 5.2.3 Real estate taxes shall be prorated at the Closing on the basis of 100% of the most recent tax bills for the Property. Taxes will then be reprorated upon receipt of actual bills for the applicable periods and the responsible party will promptly pay the difference to the other party. This provision will survive Closing. 5.2.4 Unless the Existing Financing is paid as provided in Section 3.7, an amount equal to payments of interest and deposits due under the Existing Financing, including without limitation, the repair escrow, the replacement reserve escrow fund, the real estate tax escrow, the hazard insurance escrow, and the mortgage insurance escrow, shall be paid to Seller at Closing. 5.2.5 With respect to any of Seller's employees that Buyer chooses to hire, Seller agrees to pay those employees for any ~~costs associated therewith~~ accrued vacation or sick time they have earned prior to Closing. 5.2.6 All prorations under this SECTION 5.2 shall be adjusted, if necessary, and completed after the Closing ~~Date~~ as soon as final information becomes available. Seller and ~~Purchaser shall be responsible for any costs associated therewith arising from~~ Buyer agree to cooperate and use their best efforts to complete such prorations no later than sixty (60) days (except with respect to real estate taxes) after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Home Properties of New York Inc)

Prorations. ~~13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to~~ 15.1 Water and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants other utility charges due for the period prior to 12:01 a.m. on the Closing Date ~~less any amount previously~~ ("Proration Date") shall be paid by ~~the tenants~~ Seller. Regular ad valorem real estate taxes shall be ~~credited to Seller; and other similar items~~ prorated as of the Proration Date. Real Estate tax prorations shall be ~~adjusted ratably as of 11:59 p.m.~~ based on the ~~Closing Date, and credited to the balance of the cash due~~ maximum discounted rate available at Closing. ~~Utilities~~Prior to Closing, ~~including water, sewer, electric,~~ Purchaser and ~~gas shall be prorated at Closing based on the most recent ascertainable data.~~ Seller shall ~~pay at Closing~~ notify all utilities providing service to the Property of the prospective change in ownership and that all bills ~~therefor~~ for the period from and after the Proration Date shall be paid by Purchaser, with no interruption in service. All utility deposits, if any, may be withdrawn by and refunded to Seller and ~~including the Closing, and the~~ Purchaser shall ~~pay~~ make its own replacement deposits for utilities as may be required by the ~~utility bills therefor for all periods subsequent thereto~~respective utilities involved. If Assessments, excluding regular ad valorem real estate taxes, which are due prior to the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser Closing Date shall be ~~charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and~~ paid ~~directly~~ by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments Assessments, excluding regular ad valorem real estate taxes, which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. ~~The Purchaser shall assume Seller's obligations under the Seller's existing~~ If any ongoing real estate tax ~~consulting agreements with respect~~ contest has not been finalized as of the Closing Date, Purchaser and Seller agree that the tax bill existing prior to the ~~Properties~~contexx, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be ~~treated~~ the most recent data for the tax year being contested and (i) Purchaser agrees to re-prorate such amount as ~~a portion of~~ it relates to the real estate tax ~~liability~~ proration for the current tax year to the extent such tax contest is successful. All other prorations will be ~~pro~~final except as to rent reconciliations referred to in Paragraphs 15.2 and 15.3 below and as provided in Paragraph 15.4. 15.2 All base rent, percentage rent and other common area maintenance, tax and insurance charges actually paid by tenants under the Leases and all other items of income actually received from the operation of the Property (all such charges other than base rent, "Additional Rent") shall be prorated as of the Proration Date. Purchaser shall receive a credit at Closing for all prepaid rent. To the extent the Leases provide for the adjustment of previously paid estimates of Additional Rent on a date after the Proration Date, Seller shall be entitled to receive, or shall be responsible to pay, as the case may be, its pro rata share of any such adjusted amounts which are applicable to periods ending prior to the Proration Date. Seller agrees that Seller shall promptly remit to Purchaser any rental or other payments that Seller, or any of its affiliates or agents, may receive post-~~rated~~ Closing, except that Seller need not remit payments attributable to periods prior to the Proration Date if the tenant making such payment to Seller is current in all payments due to Purchaser for periods after the Proration Date. Purchaser shall deliver to each tenant of the Property (with a copy of each to Seller) a final reconciliation of Additional Rent due for calendar year 1996 on or before March 1, 1996. Purchaser shall use reasonable efforts (without any obligation to terminate leases or initiate lawsuits) to collect such Additional Rent from such tenants. On May 1, 1996, Purchaser shall provide Seller with a reconciliation of the amount of all Additional Rent collected from or refunded to tenants for calendar year 1996, and Purchaser and Seller shall reprorate such Additional Rent as of the Proration Date, within 10 days after Purchaser's delivery to Seller of such reconciliation. Notwithstanding anything to the contrary herein, the provisions of this Paragraph shall survive the Closing. 15.3 There shall be no credit to Seller for rent or other amounts delinquent as of the Closing Date. All ~~costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of~~ basic rent paid following the Closing Date ~~so that Seller shall be responsible for~~ by any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions tenant of the ~~preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser~~ Property who is ~~able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent~~ indebted under a Lease for basic rent ~~attributable to a tenant's occupancy of a portion of the Real Property~~ for any period prior to the ~~date~~ Proration Date in an amount greater than the amount of ~~Closing, free from any claim thereon~~ all current basic rent owed by ~~the Seller. Seller may use whatever lawful means are available~~ said tenant to ~~Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents~~ Purchaser for ~~any period of time~~ periods on or after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date ~~and said Lease~~ shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is ~~not assigned to the Purchaser~~paid in full. ~~Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller~~ Within ten (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (18010) days ~~subsequent to the date when the public telephone directory pertaining to~~ following each ~~Property is published subsequent to the~~ receipt by Purchaser of a Post-Closing ~~Date. During such period~~Receipt, Purchaser shall ~~have the right~~ pay such Post-Closing Receipt to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinSeller. Purchaser shall ~~not~~ use ~~the existing logos~~ its reasonable, good faith efforts, at no additional cost or ~~trade name on stationery, business cards, contracts or other documents~~expense to Purchaser, and ~~shall not use the existing trade name in responding~~ without any obligation to ~~oral inquiries regarding the Properties except~~ terminate leases or initiate lawsuits, to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that collect all ~~existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above~~amounts which, upon collection, would constitute Post-Closing Receipts hereunder. ~~In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs~~ Within 180 days after ~~the date hereof but before~~ the Closing Date, Purchaser shall ~~have~~ deliver to Seller a reconciliation statement of Post-Closing Receipts through the ~~right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense~~first 150 days after the Closing Date. ~~Such listing and/or advertisement may list~~ Upon the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion delivery of the ~~cost~~ Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Purchaser shall provide Seller with any information reasonably necessary to verify the accuracy of ~~such listing and/or advertisement attributable~~ the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. This Paragraph 15.3 of this Agreement shall survive the Closing and the delivery and recording of the Deed. 15.4 All refunds for time periods prior to the ~~period after Closing.~~ Proration Date in connection with any ongoing real estate tax protests for the Property initiated by Seller prior to the Closing shall remain the property of Seller (dexcept to the extent required to be refunded to tenants under such tenants' leases) and are not being assigned by Seller to Purchaser pursuant to this Agreement. In the event any ~~third party (~~such ~~as telephone company or billboard company) makes a separate charge for~~ refunds are paid to Purchaser, Purchaser agrees to promptly remit all such sums to Seller subject to the ~~use~~ rights, if any, of any existing tenant of the Real Property to receive any pro rata share of such ~~listings~~ refund under such tenant's lease. Purchaser agrees, at no cost, expense, liability or ~~advertising subsequent~~ potential liability to Purchaser, to execute any documents reasonably requested by Seller in connection with such tax protests. 15.5 In addition to the foregoing prorations and credits, Landlord shall provide Purchaser at Closing ~~Date, then~~ with a credit of $139,192.75 (calculated as follows) in connection with certain tenant improvement costs to be assumed by Purchaser ~~shall be responsible to pay same subsequent~~ with respect to the ~~Closing Date~~ Lease with EBP Healthplans, Inc. (~~but no such payment shall accrue to~~ "EBP") and the ~~benefit~~ Lease with Paxson Broadcasting of ~~the~~ Orlando ("Xxxxxn"): Paxson tenant imxxxxxxent allowaxxxx assumed by Purchaser: 2nd Amendment $ 45,018.75 3rd Amendment 177,186.00 Subtotal $222,204.75 Payment made by Seller ~~or constitute a credit against a debt otherwise owed by the Seller to said third party).~~ (e$2,100.00) Purchaser's ~~temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date~~ agreed share of ~~this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars~~ Paxson improvement allowance ($~~100.00~~80,136.00) Purchaser credit to Seller for ~~each day after the permitted date set forth above~~ leasing commission paid for ~~each Property for which~~ Paxson amendment ($30,000.00) Outstanding EBP tenant improvement balance under August 2, 1994 Lease $ 34,224.00 ----------- Net closing credit to Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.$139,192.75 ===========

Appears in 1 contract

Samples: Agreement of Sale (Balcor Equity Pension Investors I)

Prorations. ~~13.1. Rents~~ 5.2.1 Rentals from Leases (~~exclusive of delinquent rents~~including fixed monthly rentals and other periodic rentals, ~~but including~~ additional rentals, percentage rentals, operating cost pass-throughs and other sums and charges payable by the tenants), prepaid ~~rents);~~ rentals and prepaid ~~associations dues~~payments (collectively, ~~refundable~~ “Rent”) shall, subject to the further provisions hereof, be prorated on the basis that Buyer shall receive a credit for all security deposits ~~(which will be assigned to~~ actually held by Seller and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all ~~tenants' liability, if any,~~ Rent which Seller has actually received before the Closing which is allocable to the period after the Closing. Seller shall not receive a credit for ~~such items); operating expenses which are reimbursable by~~ any Rent Seller has not received as of (the ~~tenants for~~ Closing that is allocable to the period prior to the Closing. If Buyer shall collect any such Rent (including without limitation percentage rent) after the Closing ~~Date less any amount previously paid by~~ allocable to the ~~tenants~~ period prior to the Closing, Buyer shall ~~be credited~~ promptly pay the same to Seller~~; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date~~, ~~and credited to the balance~~ after application of the ~~cash~~ same to any rent due at from the applicable Tenant after the Closing~~. Utilities, including water, sewer, electric, and gas~~ . 5.2.2 Real estate taxes shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as ~~no more than thirty (30) days in advance in the ordinary course~~ of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing ~~Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be~~ on the basis of the most recent ~~ascertainable data~~assessed valuation of and rates and multiplier applicable to the Property. ~~The Purchaser~~ If prorations are not made on the basis of the current tax year or if supplemental taxes are assessed after the Closing for the period prior to the Closing, the parties shall ~~assume Seller's obligations under~~ make any necessary adjustment after Closing by cash payment upon demand to the ~~Seller's existing real estate tax consulting agreements~~ party entitled thereto so that Seller shall have borne all taxes allocable to the period prior to the Closing (including all supplemental taxes which are allocable to the period prior to Closing) and Buyer shall bear all taxes allocable to the period after the Closing (including all supplemental taxes which are allocable to the period after the Closing). 5.2.3 Seller shall endeavor to have all of its utility accounts with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated Property closed out effective as of the Closing Date~~. All costs associated with telephone directory listings and any other prepaid advertisements~~ ; if such close-out is not possible, utilities shall be prorated as of the Closing (with the assumption that utility charges were uniformly incurred during the billing period in which the Closing occurs). 5.2.4 Common area and maintenance charges, property taxes, insurance and other operating cost pass-throughs payable by Tenants which accrue as of the Closing Date, but which are not then due and payable (collectively, the “Operating Expenses”), shall not be prorated, except as herein provided. Buyer shall receive and retain any Operating Expenses paid by Tenants on or after the Closing Date ~~so that~~ and Seller shall ~~be responsible for~~ receive and retain any ~~costs associated therewith~~ Operating Expenses paid by Tenants prior to the Closing ~~Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing~~ Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that ~~such prorations shall be deemed final and not subject~~ any monthly or periodic deposits or payments of estimated Operating Expenses with respect to ~~further post-closing adjustments at 5:00 PM Chicago time~~ the month in which the Closing occurs received by Seller prior to the Closing Date or by Buyer on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of or after the Closing Date shall ~~not~~ be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent prorated as of the Closing Date~~. 13.3~~. ~~To the extent it is reasonably possible for the Seller to do so, the~~ Buyer and Seller shall ~~grant (or shall arrange for the owner thereof~~ prorate at Closing, actual Operating Expenses collected by Seller from Tenants prior to ~~grant)~~ Closing with actual Operating Expenses paid by Seller with respect to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, ~~Purchaser~~ so that if there are any rebates owing to Tenants for the period of Seller’s ownership, Seller shall ~~have~~ pay Buyer the ~~right to use the existing logos, in place advertising, telephone directory listings and advertisements~~amount of such rebates at Closing, and ~~telephone numbers,~~ if the Tenants owe the landlord any additional amounts for Operating Expenses with respect to ~~each Property without additional compensation~~ the period of Seller’s ownership, Buyer shall promptly pay Seller the amount so owed to the ~~Seller except as set forth in Paragraph 13.1 herein. Purchaser~~ landlord upon Buyer’s receipt of the same (and Buyer shall exert diligent good faith efforts to collect the same but shall not ~~use the existing logos~~ required to terminate any Lease or ~~trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name~~ evict any Tenant in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified aboveconnection therewith). In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller Any prorations under this Agreement based upon monthly amounts shall be ~~entitled to~~ based upon a ~~pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.~~ thirty (d30) ~~In the event~~ day month; any ~~third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser~~ prorations under this Agreement based upon annual amounts shall be ~~responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute~~ based upon a ~~credit against a debt otherwise owed by the Seller to said third party)~~366 day year. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)

Prorations. ~~13.1. Rents~~ (~~exclusive of delinquent rents~~a) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately preceding the Closing ~~Date~~Date (the “Closing Time”), the following (collectively, the “Proration Items”): real estate and personal property taxes and assessments which are required to be paid for the calendar year or fiscal year, as the same may be applicable in accordance with the period used by the applicable taxing authority, in which the Closing occurs, utility bills (except as hereinafter provided), collected Rentals (subject to the terms of (c) below) and operating expenses payable by the owner of the Property. Seller will be charged and credited for the amounts of all of the Proration Items relating to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period up to and including the ~~Closing~~Closing Time, and ~~the~~ Purchaser ~~shall pay the utility bills therefor~~ will be charged and credited for all ~~periods subsequent thereto~~of the Proration Items relating to the period after the Closing Time. ~~If the utility company will not issue separate bills, the~~ Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be mutually and reasonably prepared by Seller and Purchaser ~~shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities~~ at least two (~~so long as no more than thirty (30~~2) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent prior to the Closing Date (the “Closing Statement”). Purchaser and Seller hereby agree to use good faith efforts to finalize the Closing Statement in accordance with the provisions of this Agreement. The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the ~~amount of any~~ actual amounts of the ~~items to be prorated is~~ Proration Items are not ~~then ascertainable~~known as of the Closing Time, the ~~adjustments thereof shall~~ prorations will be made at Closing on the basis of the ~~most recent ascertainable data~~best evidence then available; (hereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. ~~The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect~~ No prorations will be made in relation to insurance premiums (except to the ~~Properties~~extent covered by the proration of Operating Expense Recoveries), ~~i.e., those agreements which Seller has entered into with firms who are entitled~~ and Seller’s insurance policies will not be assigned to ~~a commission based on services rendered~~ Purchaser. Final readings and ~~the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (~~final xxxxxxxx for utilities will be made if ~~any) shall be treated as a portion of the real estate tax liability to be pro-rated~~ possible as of the Closing ~~Date. All costs associated with telephone directory listings and any other prepaid advertisements shall~~ Time, in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such ~~prorations~~utility bills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. A final reconciliation of Proration Items shall be made by Purchaser and Seller within nine (9) months following the Closing. The provisions of this Section 10.4 (excluding subsection (e) which is governed by Section 3.2(a) above) will survive the Closing for twelve (12) months. (b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Closing Time) of all Rentals previously paid to or collected by Seller and attributable to any period following the Closing Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rentals, if any, received by Seller after Closing and properly attributable to any period following the Closing Time. “Rentals” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable to Seller or its successor by tenants under the Tenant Leases or from other occupants or users of the Property), excluding specific tenant xxxxxxxx which are governed by Section 10.4(d) below. Rentals are “Delinquent” if they were due prior to the Closing Time and payment thereof has not been made on or before the Closing Time. Delinquent Rentals will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rentals, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to conduct lock-outs or take any other legal action to enforce collection of any such amounts owed to Seller by Tenants of the Property. All sums collected by Purchaser from and after Closing within ninety (90) days of the Closing Date from each Tenant (excluding Tenant payments for Operating Expense Recoveries attributable to the period prior to the Closing Time governed by Section 10.4(c) below and tenant specific xxxxxxxx for tenant work orders and other specific services as described in and governed by Section 10.4(d) below) will be applied first to current amounts owed by such Tenant to Purchaser and then to prior delinquencies owed by such Tenant to Seller. Seller shall have no right to any Delinquent Rentals collected by Purchaser after the expiration of ninety (90) days after the Closing Date; provided, however, that ~~such prorations~~ the foregoing limitation on Delinquent Rentals shall ~~be deemed final~~ not apply to Seller’s right to collect tax expenses in the amount of $191,736.18 and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions Northrop Grumman’s share of the ~~preceding sentence shall survive~~ Above Ground Storage Tank in the ~~Closing. 13.2. Rents which are delinquent~~ amount of $57,911.47, both due and owing from Northrop Grumman as of the date of the Closing ~~Date~~ (collectively, the “NG Pre-Closing Payables”) which NG Pre-Closing Payables shall ~~not be prorated. Instead, to the extent that Purchaser is able~~ remain Seller’s right to collect ~~said delinquencies,~~ from Northrop Grumman so long as Hincs Interests Limited Partnership is the manager under the Management Agreement and thereafter Purchaser ~~shall be entitled~~ agrees to ~~receive such delinquent rent attributable~~ use commercially reasonable good faith efforts to ~~a tenant's occupancy of a portion of~~ obtain the ~~Real Property~~ NG Pre-Closing Payables from Northrop Grumman for ~~any period prior~~ delivery to ~~the date of Closing, free from any claim thereon by the~~ Seller. Any sums collected by Purchaser and due Seller ~~may use whatever lawful means are available~~ will be promptly remitted to ~~Seller to collect any delinquencies up to and until~~ Seller. Notwithstanding the ~~day prior to the Closing Date~~foregoing, ~~provided that Seller shall not agree to reduce rents for any period of time~~ however, after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date ~~and said Lease is not assigned to the Purchaser. Furthermore, the~~ Seller shall ~~not~~ have ~~the right to retain any portion of any security deposit held by Seller (if any)~~ no right, other than with respect to ~~any Lease which will remain effective subsequent~~ the NG Taxes, to ~~Closing~~collect Delinquent Rentals, ~~even though the~~ amounts owed for Operating Expense Recoveries and xxxxxxxx for tenant ~~is delinquent in paying rent as of the Closing Date~~work orders directly from Tenants. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale and Purchase (Wells Real Estate Investment Trust Ii Inc)

Prorations. ~~13.1. Rents~~ A. Xxxts (exclusive of delinquent rents, but including prepaid rents); ~~prepaid associations dues,~~ refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; accrued but unpaid interest on the Note; fuels; prepaid operating expenses; ~~management fees in the amount of 6% of prorated rents credited to Purchaser;~~ 1995 (if not paid) and 1996 real and personal property ~~taxes prorated~~ taxes; accrued but unpaid interest on ~~a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by~~ the ~~tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller;~~ Note and other similar items shall be adjusted ratably as of ~~11:59 p.m.~~ 12:01 a.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments of record (other than ad valorem taxes) payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The parties agree to re-prorate the proration items within forty-five (45) days after the date of Closing, except as to delinquent rent referred to in Paragraph 12B below. In addition, Purchaser shall ~~assume Seller's obligations~~ give Seller a credit at Closing for all escrows, reserves and holdbacks held by the Lender under the ~~Seller's existing real estate tax consulting agreements with respect~~ Loan Documents, except for amounts, if any, of such escrows, reserves and holdbacks applicable to expenses which relate to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith period prior to the Closing Date ~~and~~ for which Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information has not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closingbeen given a credit hereunder. ~~13.2. Rents which are delinquent as of~~ B. All sums paid following the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion by any tenant of the ~~Real~~ Property who is indebted under a lease for any period prior to ~~the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to~~ and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before including the Closing Date ~~and said Lease is not assigned to~~ after the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) payment to Purchaser at of all then current basic rent shall be deemed a "Post-Closing ~~a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller,~~ Receipt" until such time as all such indebtedness is paid in ~~place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:~~ full. Within ten (~~a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180~~10) days ~~subsequent to the date when the public telephone directory pertaining to~~ following each ~~Property is published subsequent to the~~ receipt by Purchaser of a Post-Closing ~~Date. During such period~~Receipt, Purchaser shall ~~have the right~~ pay such Post-Closing Receipt to ~~use the existing logos~~Seller. For a period of sixty days following Closing, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall ~~not use~~ send monthly collection notices to tenants residing at the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified aboveowing Post-Closing Receipts. ~~In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs~~ Within 90 days after ~~the date hereof but before~~ the Closing Date, Purchaser shall ~~have~~ deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 60 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. At Seller's expense, Seller retains the right to ~~place a listing and/or advertisement in such publication~~ conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's ~~sole cost~~ books and ~~expense. Such listing and/or advertisement may list~~ records to verify the ~~Purchaser's name~~ accuracy of the Post-Closing Receipts reconciliation statement and ~~telephone number~~upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. Seller ~~may also place a listing and/or advertisement in such publication, and in~~ shall deliver to Purchaser any sums received by Seller after the ~~event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable~~ Closing Date which relate to the period of time after ~~Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to~~ the Closing Date, ~~then Purchaser~~ along with an accounting identifying any such sums. Paragraph 12B of this Agreement shall ~~be responsible to pay same subsequent to~~ survive the Closing ~~Date (but no such payment shall accrue to~~ and the ~~benefit~~ delivery and recording of the ~~Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)~~Deed. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale (Balcor Realty Investors LTD 82)

Prorations. ~~13.1. Rents~~ (~~exclusive of delinquent rents~~a) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "Proration Time"), the following (collectively, the "Proration Items"): (i) Rents, in accordance with Section 10.4(b) below. (ii) In the event that there shall be any expenses attributable to the operation, maintenance or ownership of the Property that are not paid directly by the Tenant under the Lease ("Other Proration Items"), then Seller will be responsible for the amounts thereof relating to the period up to and including the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser ~~shall pay the utility bills therefor for all periods subsequent thereto. If the utility company~~ will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for ~~any costs associated therewith prior~~ the amounts thereof relating to the ~~Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and~~ period after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. InsteadAccordingly, to the extent that ~~Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property~~ Seller prepaid for any ~~period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means~~ Other Proration Items that are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after the Closing Date, Seller will receive a credit therefor at Closing~~. (d) In~~ . Conversely, at Closing, to the ~~event~~ extent that Seller has not yet paid for any ~~third party (such as telephone company~~ Other Proration Items that are attributable to the period on or ~~billboard company) makes a separate charge for the use of such listings or advertising subsequent~~ prior to the Closing Date, then Purchaser shall receive a credit for such Other Proration Items and shall pay such expenses when due, or, if past-due at Closing, within seven (7) days after Closing. Seller will be ~~responsible~~ charged and credited for the amounts of all of the Proration Items relating to ~~pay same subsequent~~ the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (~~but no such~~ the "Closing Statement"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The prorations shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment ~~shall accrue~~ of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months. (b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental (as defined below in this paragraph) previously paid to or collected by Seller and attributable to any period following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period following the Proration Time. "Rental" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include building operation and maintenance costs and expenses and real estate taxes as provided for under the Lease, to the ~~benefit~~ extent the same exceeds any expense stop specified in the Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property or office park association dues, and other sums and charges payable by the Tenant under the Lease. Rental is "Delinquent" when it was due prior to the Closing Date, and payment thereof has not been made on or before the Proration Time. Delinquent Rental will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rental, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to pursue legal action to enforce collection of any such amounts owed to Seller by the Tenant. Seller reserves the right to pursue a collection action against the Tenant for Delinquent Rental; provided, however, in no event may Seller seek to terminate the Lease or ~~constitute a credit against a debt otherwise~~ Tenant’s occupancy thereunder or threaten to do so. All sums collected by Purchaser from and after Closing from the Tenant will be applied first to amounts due from the Tenant for the month of Closing, then to current amounts due subsequent to Closing, then to amounts owed by the Tenant to Seller. Purchaser and Seller shall promptly remit to ~~said third party~~the other any sums received by either party that are due to the other pursuant to this Section 10.4(b). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale and Purchase (Griffin Capital Essential Asset REIT II, Inc.)

Prorations. ~~13.1. Rents (exclusive of delinquent rents~~Sellers and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately preceding the Closing ~~Date~~Date (the “Closing Time”), the following (collectively, the “Proration Items”) real estate and personal property taxes and assessments for the year in which Closing occurs, utility bills (except as hereinafter provided), collected Rentals (subject to the terms of (b) below), expenses under the Permitted Exceptions, and expenses under Service Contracts assumed by Purchaser at Closing payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Sellers will be charged and credited for the amounts of all of the Proration Items relating to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period up to and including the ~~Closing~~Closing Time, and ~~the~~ Purchaser ~~shall pay the utility bills therefor~~ will be charged and credited for all ~~periods subsequent thereto~~of the Proration Items relating to the period after the Closing Time. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser Such preliminary estimated Closing prorations shall be ~~charged its portion of such payment at Closing. No proration shall~~ set forth on a preliminary closing statement to be ~~made for utility expenses that are separately metered to~~ prepared by Sellers and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable submitted to Purchaser ~~and Seller. Seller~~ for Purchaser’s approval (which approval shall not be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent unreasonably withheld) two (2) Business Days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Sellers and delivered to the Title Company for purposes of making the -33- preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Sellers (if the preliminary prorations result in a net credit to Sellers) or by Sellers to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the ~~amount of any~~ actual amounts of the ~~items to be prorated is~~ Proration Items are not ~~then ascertainable~~known as of the Closing Time, the ~~adjustments thereof shall~~ prorations will be made at Closing on the basis of the ~~most recent ascertainable data~~best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Sellers and Purchaser. ~~The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect~~ No prorations will be made in relation to insurance premiums (except to the ~~Properties~~extent covered by the proration of Operating Expense Recoveries), ~~i.e., those agreements which Seller has entered into with firms who are entitled~~ and Sellers’ insurance policies will not be assigned to ~~a commission based on services rendered~~ Purchaser. Final readings and ~~the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (~~final xxxxxxxx for utilities will be made if ~~any) shall be treated as a portion of the real estate tax liability to be pro-rated~~ possible as of the Closing ~~Date. All costs associated with telephone directory listings and any other prepaid advertisements shall~~ Time, in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to ~~such prorations; provided~~utility bills (except to the extent covered by the proration of Operating Expense Recoveries). Sellers will be entitled to all deposits presently in effect with the utility providers, ~~however, that such prorations~~ and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. Seller shall cooperate in good faith with Purchaser to facilitate the transfer of all utilities to Purchaser at and/or immediately following the Closing. A final reconciliation of Proration Items shall be ~~deemed final~~ made by Purchaser and ~~not subject to further post-closing adjustments at 5:00 PM Chicago time~~ Sellers on or before November 30, 2016 (herein, the ~~day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment~~“Final Proration Date”). The provisions of ~~the preceding sentence shall~~ this Section 10.4 will survive the ~~Closing. 13.2. Rents which are delinquent as of the~~ Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant Final Proration Date has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publicationoccurred, and in the event ~~that Seller decides~~ any items subject to ~~place such a listing and/or advertisement~~proration hereunder are discovered prior to the Final Proration Date, ~~Seller~~ the same shall be ~~entitled to a pro-rata credit for such portion~~ promptly prorated by the parties in accordance with the terms of ~~the cost of such listing and/or advertisement attributable~~ this Section 10.4. Notwithstanding anything to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth contrary provided in this ~~paragraph shall expire on the date(s) set forth above. If~~ Agreement including, but not limited to, this Section 10.4(a), Sellers and Purchaser ~~continues~~ hereby agree to use the ~~name currently being used by the Property subsequent to the expiration date of this temporary license set forth above~~following, ~~then Purchaser shall be liable~~ estimated 2016 real estate taxes and assessments for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws purposes of the ~~state where such~~ proration of same at Closing: (x) $470,000.00 for the Shoppes at Parkland Real Property ~~is located to prevent such unauthorized use or to recover any damages authorized by such laws~~and the Shoppes at Parkland Improvements and (y) $180,000.00 for the University Palms Real Property and the University Palms Improvements.

Appears in 1 contract

Samples: Agreement of Sale and Purchase (Preferred Apartment Communities Inc)

Prorations. ~~13.1. Rents~~ (~~exclusive of delinquent~~ a) Rents, including, without limitation, percentage rents, if any, and any additional charges and expenses payable by tenants under Leases (including, without limitation, the Rooftop Lease and the Parking Lease), all as and when actually collected, real property taxes and assessments due and payable in the year in which the closing occurs (without regard to the date levied, assessed or accrued and without regard to any fiscal year; and real property taxes, and assessments for annual taxes (but ~~including prepaid rents~~not special assessments) shall be prorated based upon 110% of the most recent ascertainable xxxx and promptly reprorated upon receipt of an actual xxxx); ~~prepaid associations dues~~water, ~~refundable security deposits~~ sewer and utility charges; amounts payable under any Service Contracts or other agreements or documents; annual permits and/or inspection fees (~~which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing~~calculated on the basis of the period covered); ~~fuels~~common area maintenance charges and amounts payable to the Hotel Owner or received from the Hotel Owner under the REA and other recorded documents; vending machine and paper recycling income, the current payment of the Nicollet Mall Special Assessment; and any other income and expenses of the operation and maintenance of the Property (including, without limitation, expenses prepaid ~~operating expenses; management fees~~ by Seller with respect to which Seller shall receive a credit at Closing in the amount of ~~6% of~~ the prepaid portion thereof), shall all be prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately prior to Closing ~~Date~~(i.e., ~~and credited~~ Buyer is entitled to the ~~balance~~ income and responsible for the expenses of the ~~cash due at~~ day of Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants three hundred sixty-five (~~if any~~365) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorationsday year; provided, however, that ~~such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on~~ any real estate taxes, including the ~~day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions~~ current payments of the ~~preceding sentence shall survive~~ Nicollet Mall Special Assessment, payable directly by tenants to the ~~Closing. 13.2. Rents which are delinquent as of the~~ governing taxing authorities or reimbursable by tenants after Closing ~~Date~~ shall not be prorated. ~~Instead~~Buyer shall reimburse Seller for the tenant improvement costs, leasing commissions, legal fees and other expenses, and free rent and other concessions, as provided in Section 7.3. All rents and other sums collected after the Closing shall be applied and paid as provided in this Section 8.5(a). Any payment received after Closing shall be deemed a payment due after the Closing until the tenant or other payor is current in its post-Closing obligations, and then such payments shall be paid to Seller to the extent ~~that Purchaser is able~~ of any rent or other sums owing to Seller for periods prior to Closing. Buyer shall use reasonable efforts to collect ~~said delinquencies~~such rents and other sums owing to Seller. Seller retains the right to collect any such rents and other sums from tenants and other payors after Closing; provided, however, that Seller shall have no right to evict any tenant or to exercise any other landlord-tenant remedy other than to xxx for collection. Without intending to limit the generality of the foregoing, Buyer and Seller acknowledge and agree that certain rental payments by the tenants under the Parking Lease and Rooftop Lease are collected monthly in arrears and, upon receipt of such payments after Closing, such sums shall be applied toward the period to which they properly pertain, and shall be prorated between Seller and Buyer, with the party receiving same promptly paying to the other party such other party’s share thereof. Reconciliations of taxes, insurance charges and other expenses owed by tenants under Leases for the calendar year in which the Closing occurs shall be prepared by Buyer with the cooperation of Seller within ninety (90) days following the end of such year in accordance with the requirements set forth in the Leases and as provided in this Section 8.5(a). For those Leases in which tenants pay a proportionate share of taxes (including the current payments of the Nicollet Mall Special Assessment), insurance charges or other expenses over a base year amount or expense stop, the ~~Purchaser~~ proration between the parties of the income received from tenants over such base year amount or expense stop shall be calculated based on the total amount of such expenses for the Property incurred by both Seller and Buyer for the entire calendar year, rather than on the amount of such expenses actually incurred by each party for such year, in order to enable the parties to determine if the base year amount or expense stop for such year is exceeded. Such income as so calculated shall be prorated between the parties based on the number of days each party owned the Property during such year and otherwise in accordance with this Section 8.5(a). By way of illustration but without limiting the foregoing, if: (i) the Closing was to occur on June 1, 2006, (ii) during Seller’s period of ownership of the Property during the year 2006 (151 days), Seller incurred expenses of $450,000, (iii) during Buyer’s period of ownership of the Property during the year 2006 (214 days), Buyer incurred expenses of $500,000, (iv) total expenses for such year recovered from tenants under Leases is $400,000 (e.g., $950,000 total expenses minus a total base year amount of $550,000), then Seller would be entitled to ~~receive~~ $165,479.45 of such ~~delinquent~~ income ($400,000/365 days = $1,095.89 per diem multiplied by 151 days) and Buyer would be entitled to $234,520.55 of such income ($1,095.89 per diem multiplied by 214 days), regardless of the actual amount of expenses actually incurred by each party (which would have instead resulted in Seller receiving $189,473.68 of such income and Buyer receiving $210,526.32 of such income). For Leases which do not have a base year amount or expense stop, the proration between the parties of income received from tenants from reconciliations of expenses under the Leases shall be calculated based on the expenses actually incurred by each party for such year and each party’s period of ownership of the Property, and otherwise in accordance with this Section 8.5(a). In addition to the foregoing, on or before the end of the ninety (90) day period described in this paragraph above, Buyer also shall prepare with the cooperation of Seller all other annual reconciliations required in connection with the Property including, without limitation, annual reconciliations under the Parking Lease, Rooftop Lease and REA, as required thereby, and the parties shall reprorate the amounts payable thereunder (a) with respect to the REA, in the same manner as the reproration of rent under the Leases, based on the expenses actually incurred by Seller and Buyer under the REA for such year and each party’s respective period of ownership of the Property, and (b) with respect to the Parking Lease and the Rooftop Lease, based on the actual gross revenue of the tenants collected by the tenants during the Seller’s and Buyer’s respective periods of Ownership of the Property. Buyer shall promptly reimburse Seller for Seller’s prorated share of all expenses that are prepaid by Seller before Closing for which Buyer receives reimbursement from a third party after Closing. As an example (and without limitation), Seller incurs obligations each month and then bills the Hotel Owner for the Hotel Owner’s share; the Hotel Owner then reimburses Seller. In the event Buyer receives payment(s) from the Hotel Owner after Closing attributable to ~~a tenant's occupancy~~ expenses incurred and paid by Seller prior to Closing, Buyer shall promptly forward to Seller such amounts received from the Hotel Owner. The amount of ~~a portion of the Real Property for~~ any ~~period~~ cash security deposits held by Seller under Leases (plus any interest thereon accrued prior to the date of Closing, ~~free from any claim thereon~~ if required by law or contract) shall be credited against the ~~Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to~~ Purchase Price (and ~~until the day prior to the Closing Date, provided that~~ Seller shall ~~not agree~~ be entitled to ~~reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents~~retain such cash security deposits). Seller shall ~~not have~~ receive credits at Closing for the ~~right subsequent to Closing to seek (by legal action or otherwise) the collection~~ amount of any ~~rents delinquent~~ utility or other deposits with respect to the Property to the extent such deposits are assignable to Buyer and are so assigned or credited to Buyer at Closing. Buyer shall cause all utilities to be transferred into Buyer’s name and account at the time of Closing. As soon as reasonably practicable after Closing, Seller shall transfer to Buyer all non-cash security deposits and deliver to Buyer all necessary consents to such transfers. Between the date of Closing and until such transfer takes place, Seller agrees to hold any such non-cash security deposit in trust for the benefit of Buyer. Seller and Buyer hereby agree that if any ~~period prior to Closing unless~~ of the ~~tenant has vacated the premises under the pertinent Lease before~~ aforesaid prorations and credits cannot be calculated accurately on the Closing Date ~~and said Lease is~~ or in the case of rents or other charges that are paid in arrears or are otherwise not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent yet ascertainable or payable as of the Closing Date~~. 13.3. To~~ , then the ~~extent it is~~ same shall be calculated as soon as reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on practicable after the Closing Date or the date such amounts have been collected, and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall ~~expire on~~ pay said sum to the ~~day which is one hundred eighty~~ other party within thirty (~~180~~30) days ~~subsequent~~ thereafter. Any amounts not paid within such thirty (30) day period shall bear interest from the date actually received by the payor until paid at the rate of ten percent (10%) per annum. Upon request of either party, the parties shall provide a detailed and accurate written statement signed by such party certifying as to the ~~date when the public telephone directory pertaining to each Property is published subsequent~~ payments received by such party from tenants and other payors from and after Closing and to the ~~Closing Date. During~~ manner in which such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documentspayments were applied, and shall ~~not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned~~ make their books and records available for inspection by the other party during ordinary business hours upon reasonable advance notice. Any tax refund received by Buyer or Seller after Closing (net of third party costs incurred in obtaining such refund) shall be paid to the party(ies) who previously paid or were responsible for such taxes, whether it be Seller, Buyer, or tenants under the Leases, and shall be prorated appropriately. (b) The ~~Seller stipulates that there is full~~ cost of the Title Policy shall be split equally between Buyer and ~~adequate consideration~~ Seller. Payment of all transfer taxes payable in connection with recording the deed shall be split equally between Buyer and Seller; Buyer shall pay all other recording fees. Any closing escrow fees and other closing charges of the Title Company for the ~~license herein granted~~sale transactions shall be split equally between Seller and Buyer. Seller shall be solely responsible for any and all costs and expenses pertaining to the assumption of the First Mortgage Loan including, without limitation, loan title policies, lender’s legal fees, lender’s escrow and closing fees and all intangibles and mortgage taxes. The parties will execute and deliver any required transfer or other similar tax declarations to the appropriate governmental entity at Closing. At Closing, Seller shall reimburse Buyer for the cost of a Phase I environmental report in an amount not to exceed $3,000.00. (c) The total annual percentage rent payable under each Lease for the lease year in which the Closing occurs shall be prorated between Seller and Buyer based solely on the respective number of days of ownership of the Property by Seller and Buyer during such year, regardless of what portion of sales occur during the different parts of such year. At Closing, the parties shall estimate the total percentage rent payable under each Lease for the applicable lease year based on the percentage rent paid under such Lease for the prior year, and Seller shall receive a credit at Closing for its prorata share thereof. Once the final amount of percentage rent is determined, the parties shall reprorate, and the party owing the other shall promptly remit the amount owed no later than fifteen (15) days after the reproration is determined. (d) The provisions of this Section 8.5 shall survive the Closing. (e) The obligations of Buyer under this Agreement are subject to satisfaction or written waiver of Buyer of each of the following conditions or requirements on or before Closing: (1) Seller shall have delivered all documents required to be delivered at Closing under Article VIII; (2) Buyer shall not have terminated this Agreement pursuant to Section 3.2, Section 4.1(c), Article VI or Section 8.4(c); (3) The Title Policy shall have been issued and marked down to Closing, subject only to Conditions of Title in a so-called “New York” style closing; (4) Purchaser shall ~~make arrangements~~ have received the REA Estoppel; and (5) The Lender under the First Mortgage Loan shall have approved, in writing, to the extent consent is required, the assumption of the First Mortgage Loan, pursuant to documents reasonably acceptable to Seller, Buyer and their respective counsel, provided Buyer has performed all of its obligations hereunder with ~~the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above~~respect thereto. In the event that all of the ~~publication close date for any publication~~ foregoing provisions of this Section 8.5(e) are not satisfied in ~~which~~ all material respects unless otherwise waiver by Buyer, and Seller ~~currently has a telephone directory listing and/or advertisement occurs after the date hereof but before~~ does not request an adjournment of the Closing ~~Date~~to comply such adjournment not to exceed ten (10) days, ~~Purchaser~~ and Buyer elects in writing to terminate this Agreement, then the Deposit shall be promptly delivered to Buyer by Title Company and, upon receipt thereof by Buyer, neither party shall have any further claim against the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed other by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date reason of this ~~temporary license set forth above~~Agreement, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysexcept as otherwise specifically provided herein. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Inland American Real Estate Trust, Inc.)

Prorations. ~~13.1. Rents~~ (~~exclusive~~ a) The following items shall be prorated between Seller and Purchaser as of ~~delinquent rents, but including prepaid rents)~~11:59 p.m. on the date immediately preceding the Closing Date; ~~prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and~~ prorations credited to Purchaser ~~at Closing); fuels; prepaid operating expenses; management fees in~~ shall reduce the ~~amount of 6% of prorated rents~~ Purchase Price and prorations credited to Seller shall increase the Purchase Price at Closing as follows: (i) city, state, and county ad valorem taxes for the year in which the Closing occurs based on the ad valorem tax bills for the Purchased Property, if then available for such year, or if not, then on the basis of the ad valorem tax bxxx for the Purchased Property for the immediately preceding year. (If such proration is based on an ad valorem tax bxxx for the immediately preceding year and should such proration prove to be inaccurate on receipt of the ad valorem tax bxxx for the Purchased Property for the year of Closing, then either Seller or Purchaser~~; real~~ , as applicable, may demand at any time after Closing a payment from the other party in an amount sufficient to correct such malapportionment); (ii) sanitary sewer taxes and ~~personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability~~utility charges, if any; provided, however, that Purchaser may elect, prior to Closing, to require that the meters for all utility charges be read and terminated as of the end of the last business day preceding the Closing Date, in which case Seller shall be responsible for and shall pay for all such ~~items); operating expenses which are reimbursable by the tenants for~~ charges first accruing or relating to the period prior to the Closing ~~Date less any amount previously paid by~~ Date; (iii) all payment obligations under the ~~tenants shall be credited to Seller~~Assumed Contracts and Leases; and (iv) resident rents and other ~~similar~~ revenues (including Prepaids and Deposits, if any). Purchaser and Seller shall prepare a proposed schedule (the “Proration Schedule”) not later than two (2) business days prior to Closing, including the items listed above and any other items the parties determine necessary. Such Proration Schedule shall include all applicable income and expenses with regard to the Purchased Property. Seller and Purchaser will use all reasonable efforts to finalize and agree upon the Proration Schedule at least two (2) business days prior to Closing. (b) Seller shall receive all income from the Purchased Property attributable to the period prior to the Proration Date (as defined below) and shall, unless otherwise provided for in this Agreement, be ~~adjusted ratably as~~ responsible for all expenses of the Purchased Property attributable to the period prior to 11:59 ~~p.m.~~ P.M. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to date immediately preceding the Closing Date ~~shall be paid by Purchaser~~(the “Proration Date”). If In the ~~amount of~~ event Purchaser receives any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to payment from a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible resident for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent ~~attributable to a tenant's occupancy of a portion of the Real Property~~ due for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action Proration Date or ~~otherwise) the collection~~ payment of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate other receivable of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall ~~have the right~~ forward such payment to ~~use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect~~ Seller. Payments received from a resident shall be allocated first to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein grantedany current balances due from such resident. (c) Purchaser shall ~~make arrangements with~~ receive all income from the ~~pertinent telephone companies so that~~ Purchased Property attributable to the period from and after the Proration Date and shall, except as otherwise provided for in this Agreement, be responsible for all ~~existing telephone directory listings~~ expenses of the Purchased Property attributable to the period from and ~~advertisements and signs can be replaced in due course and within~~ after the ~~license period specified above~~Proration Date. In the event ~~that the publication close date~~ Seller or Seller’s affiliates receive any payment from a resident for rent due for any ~~publication in which Seller currently has a telephone directory listing and/or advertisement occurs~~ period from and after the ~~date hereof but before~~ Proration Date, Seller shall forward such payment to Purchaser. (d) The parties agree that any amounts that may become due under this Section 3.4 shall be paid at Closing as can best be determined. A post-Closing reconciliation of prorated items shall be made by the parties within ninety (90) days after the Closing ~~Date~~Date and any amounts due at that time shall be promptly forwarded to the respective party to whom such amounts are due in a lump sum payment. Any additional amounts which may become due after such determination shall be forwarded at the time they are received. Any amounts due under this Section 3.4 which cannot be determined within ninety (90) days after the Closing Date (such as, for example, fiscal year-end real estate taxes) shall be reconciled as soon thereafter as such amounts can be determined. Purchaser and Seller agree that each shall have the right to ~~place a listing and/or advertisement~~ audit the records of the other in connection with any such ~~publication at Purchaser's sole cost and expense~~post-Closing reconciliation. ~~Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides~~ Any payments made pursuant to ~~place such a listing and/or advertisement, Seller~~ this Section 3.4 shall be ~~entitled to~~ treated as a ~~pro-rata credit~~ purchase price adjustment for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)income tax purposes. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall ~~be liable~~ receive a credit towards the Purchase Price for the Accrued Employee Vacation and ~~shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which~~ any other obligations as otherwise expressly agreed by Purchaser ~~continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days~~and Seller. (f) ~~If Purchaser continues to use said logos or trade names beyond~~ This Section 3.4 shall survive the Closing for a period ~~allowed above for which a temporary license has been granted, then Seller~~ of one (or 1) year following the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such lawsClosing Date.

Appears in 1 contract

Samples: Asset Purchase Agreement (American Realty Capital Healthcare Trust II, Inc.)

Prorations. ~~13.1. Rents~~ 5.2.1 Rentals from Leases (~~exclusive of delinquent rents~~including fixed monthly rentals and other periodic rentals, ~~but including~~ additional rentals, percentage rentals, operating cost pass-throughs and other sums and charges payable by the tenants), prepaid ~~rents);~~ rentals and prepaid ~~associations dues~~payments (collectively, ~~refundable~~ "RENT") shall, subject to the further provisions hereof, be prorated on the basis that Buyer shall receive a credit for all security deposits ~~(which will be assigned to~~ actually held by Seller and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all ~~tenants' liability, if any,~~ Rent which Seller has actually received before the Closing which is allocable to the period after the Closing. Seller shall not receive a credit for ~~such items); operating expenses which are reimbursable by~~ any Rent Seller has not received as of the ~~tenants for~~ Closing that is allocable to the period prior to the ~~Closing Date less~~ Closing. If Buyer shall collect any ~~amount previously paid by~~ such Rent (including without limitation percentage rent) after the ~~tenants~~ Closing, Buyer shall ~~be credited~~ promptly pay the same to Seller~~; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date~~, ~~and credited to the balance~~ after application of the ~~cash~~ same to any rent due at from the applicable Tenant after the Closing~~. Utilities, including water, sewer, electric, and gas~~ . 5.2.2 Real estate taxes shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as ~~no more than thirty (30) days in advance in the ordinary course~~ of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing ~~Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be~~ on the basis of the most recent ~~ascertainable data~~assessed valuation of and rates and multiplier applicable to the Property. ~~The Purchaser~~ If prorations are not made on the basis of the current tax year or if supplemental taxes are assessed after the Closing for the period prior to the Closing, the parties shall ~~assume Seller's obligations under~~ make any necessary adjustment after Closing by cash payment upon demand to the ~~Seller's existing real estate tax consulting agreements~~ party entitled thereto so that Seller shall have borne all taxes allocable to the period prior to the Closing (including all supplemental taxes which are allocable to the period prior to Closing) and Buyer shall bear all taxes allocable to the period after the Closing (including all supplemental taxes which are allocable to the period after the Closing). 5.2.3 Seller shall endeavor to have all of its utility accounts with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated Property closed out effective as of the Closing ~~Date. All costs associated with telephone directory listings and any other prepaid advertisements~~ Xxxx; if such close-out is not possible, utilities shall be prorated as of the Closing (with the assumption that utility charges were uniformly incurred during the billing period in which the Closing occurs). 5.2.4 Common area and maintenance charges, property taxes, insurance and other operating cost pass-throughs payable by Tenants which accrue as of the Closing Date, but which are not then due and payable (collectively, the "OPERATING EXPENSES"), shall not be prorated, except as herein provided. Buyer shall receive and retain any Operating Expenses paid by Tenants on or after the Closing Date ~~so that~~ and Seller shall ~~be responsible for~~ receive and retain any ~~costs associated therewith~~ Operating Expenses paid by Tenants prior to the Closing ~~Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing~~ Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that ~~such prorations shall be deemed final and not subject~~ any monthly or periodic deposits or payments of estimated Operating Expenses with respect to ~~further post-closing adjustments at 5:00 PM Chicago time~~ the month in which the Closing occurs received by Seller prior to the Closing Date or by Buyer on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of or after the Closing Date shall ~~not~~ be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent prorated as of the Closing Date~~. 13.3~~. ~~To the extent it is reasonably possible for the Seller to do so, the~~ Buyer and Seller shall ~~grant (or shall arrange for the owner thereof~~ prorate at Closing, actual Operating Expenses collected by Seller from Tenants prior to ~~grant)~~ Closing with actual Operating Expenses paid by Seller with respect to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, ~~Purchaser~~ so that if there are any rebates owing to Tenants for the period of Seller's ownership, Seller shall ~~have~~ pay Buyer the ~~right to use the existing logos, in place advertising, telephone directory listings and advertisements~~amount of such rebates at Closing, and ~~telephone numbers,~~ if the Tenants owe the landlord any additional amounts for Operating Expenses with respect to ~~each Property without additional compensation~~ the period of Seller's ownership, Buyer shall promptly pay Seller the amount so owed to the ~~Seller except as set forth in Paragraph 13.1 herein~~landlord upon Buyer's receipt of the same (and Buyer shall exert diligent good faith efforts to collect the same). Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller Any prorations under this Agreement based upon monthly amounts shall be ~~entitled to~~ based upon a ~~pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.~~ thirty (d30) ~~In the event~~ day month; any ~~third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser~~ prorations under this Agreement based upon annual amounts shall be ~~responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute~~ based upon a ~~credit against a debt otherwise owed by the Seller to said third party)~~366 day year. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)

Appears in 1 contract

Samples: Agreement of Purchase and Sale (Pacific Gulf Properties Inc)

Prorations. ~~13.1~~12.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in if and to the ~~amount~~ extent payable to the existing property manager for rent received and prorated for the month of ~~6% of prorated rents credited to Purchaser~~Closing; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellertaxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. ~~The Purchaser shall assume Seller's obligations under~~ All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below. 12.2. For a period of 120 days following the ~~Seller's existing real estate tax consulting agreements with respect to the Properties~~Closing, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of all basic rent paid following the Closing Date ~~so that Seller shall be responsible for~~ by any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions tenant of the ~~preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser~~ Property who is ~~able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent~~ indebted under a lease for basic rent ~~attributable to a tenant's occupancy of a portion of the Real Property~~ for any period prior to ~~the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to~~ and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before including the Closing Date ~~and said Lease is not assigned to~~ after the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) payment to Purchaser at of all current basic rent shall be deemed a "Post-Closing ~~a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller,~~ Receipt" until such time as all such indebtedness is paid in ~~place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:~~ full. Within ten (~~a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180~~10) days ~~subsequent to the date when the public telephone directory pertaining to~~ following each ~~Property is published subsequent to the~~ receipt by Purchaser of a Post-Closing ~~Date. During such period~~Receipt, Purchaser shall ~~have the right~~ pay such Post-Closing Receipt to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinSeller. Purchaser shall ~~not~~ use ~~the existing logos or trade name on stationery~~its best efforts to collect all amounts which, ~~business cards~~upon collection, ~~contracts or other documents~~would constitute Post-Closing Receipts hereunder, ~~and~~ but in no event shall ~~not use the existing trade name in responding~~ Purchaser be required to ~~oral inquiries regarding the Properties except~~ initiate legal proceedings to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovecollect such amounts. ~~In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs~~ Within 120 days after ~~the date hereof but before~~ the Closing Date, Purchaser shall ~~have~~ deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to ~~place a listing and/or advertisement in such publication~~ conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's ~~sole cost~~ books and ~~expense. Such listing and/or advertisement may list~~ records to verify the ~~Purchaser's name~~ accuracy of the Post-Closing Receipts reconciliation statement and ~~telephone number.~~ upon the verification of additional funds owing to Seller ~~may also place a listing and/or advertisement~~ in ~~such publication~~an amount greater than $5,000.00, Purchaser shall pay to Seller said additional Post-Closing Receipts and ~~in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of~~ the cost of ~~such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use~~ performing Seller's audit. Paragraph 12.2 of ~~such listings or advertising subsequent to~~ this Agreement shall survive the Closing ~~Date, then Purchaser shall be responsible to pay same subsequent to~~ and the ~~Closing Date (but no such payment shall accrue to the benefit~~ delivery and recording of the ~~Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)~~deed. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale (Balcor Equity Pension Investors Iii)

Prorations. ~~13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to~~ 15.1 Water and ~~assumed by Purchaser and credited to Purchaser at Closing)~~other utility charges; fuels; prepaid operating expenses~~; management fees in the amount of 6% of prorated rents credited to Purchaser~~; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' ~~liability~~liabilities, if any, for such items); tenant reimbursement obligations for operating expenses ~~which are reimbursable~~ paid by Seller for the period prior to the Closing Date, less any amount previously paid by the ~~tenants~~ tenants; unpaid operating expenses for the period prior to the Closing Date ~~less any amount previously paid by the tenants shall be credited to Seller~~prorated on a "net" basis, as set forth above; and all other ~~similar~~ items of expense and income shall be adjusted ratably as of ~~11:59 p.m.~~ 12:01 a.m. on the Closing Date ("Proration Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business"), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be ~~reimbursed at Closing~~ entitled to a credit for ~~any~~ all transferable utility deposits ~~which the Seller has deposited with any utility company and which will be assigned~~ to the extent actually transferred hereunder, if any, and all other utility deposits, if any, may be withdrawn by and refunded to Seller and Purchaser ~~at Closing~~shall make its own replacement deposits for utilities as may be required by the respective utilities involved. ~~Assessments~~ Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due prior to the Closing Date shall be paid by Seller. Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. ~~The Purchaser shall assume Seller's obligations under the Seller's existing~~ If any ongoing real estate tax ~~consulting agreements with respect to the Properties, i.e., those agreements which Seller~~ contest has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated not been finalized as of the Closing Date, Purchaser and Seller agree that the tax bill existing prior to the contexx, shall be the most recent data for the tax year being contested and (i) Purchaser agrees to re-prorate such amount as it related to the real estate tax proration to the extent such tax contest is successful. All ~~costs associated~~ other prorations will be final except as to delinquent rent referred to in Paragraph 15.2 below and as provided in Paragraph 15.3. Purchaser shall be credited and Seller will be charged with ~~telephone directory listings~~ an amount equal to all Tenant security deposits and ~~any~~ interest thereon being held by Seller or Seller's managing agent. Seller shall be entitled to retain all Tenant security deposits, interest thereon, or other ~~prepaid advertisements~~ such credit due Tenants for which Purchaser receives credit and Seller is charged pursuant to this Paragraph. Seller and Purchaser agree to cooperate in the calculation and reporting of all closing prorations at least two (2) business days prior to the Closing Date. 15.2 All basic rent collected by Seller shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.12.01 a.m.

Appears in 1 contract

Samples: Sale Agreement (Balcor Equity Pension Investors Ii)

Prorations. ~~13.1. Rents~~ (~~exclusive of delinquent rents~~a) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the “Proration Time”), the following (collectively, the “Proration Items”): (i) Rents, in accordance with Section 10.4(b) below. (ii) Seller shall credit Purchaser at Closing with all cash Security Deposits and any prepaid rents, together with any interest to be paid to the Tenant thereon. (iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and ~~credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas~~ a per diem estimated adjustment shall be ~~prorated at~~ made for the days between the meter reading date and the Closing Date based on the most recent ~~ascertainable data~~meter reading. (iv) Amounts payable under the Apex Agreements and Service Contracts. (v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. (vi) The value of fuel stored at the Real Property, at Seller’s most recent cost, including taxes, on the basis of a reading made within ten (10) days prior to the Closing by Seller’s supplier. (vii) To the extent that any of Westcore Management’s employee benefits impose a waiting period on new employees before such benefit will be available, and Seller or MCRC has the ability to continue comparable benefits post-Closing in favor of the Company Employees, during all or a portion of such waiting period, payment to Seller or MCRC of the costs of continuing such benefits for such period. (viii) Any unpaid costs necessary to complete the Mt. Pyramid Project will be credited to Purchaser. If the parties cannot reasonably agree on such costs, the amount in dispute will be held in escrow by the Escrow Agent until completion of the project, at which time, any unpaid costs not occasioned by (A) change orders agreed to by Purchaser post-Closing or (B) increases to the cost of construction resulting from the actions of Purchaser, will be paid from the escrow, and any excess monies will be paid to Seller. Seller ~~shall pay at Closing the bills therefor~~ will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the ~~Closing~~Proration Time, and ~~the~~ Purchaser ~~shall pay the utility bills therefor~~ will be charged and credited for all ~~periods subsequent thereto~~of the Proration Items relating to the period after the Proration Time. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser The estimated Closing prorations shall be ~~charged its portion of such payment at Closing~~set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the “Closing Statement”). ~~No proration~~ The Closing Statement, once agreed upon, shall be ~~made for utility expenses that are separately metered to and paid directly~~ signed by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the ~~amount of any~~ actual amounts of the ~~items to be prorated is~~ Proration Items are not ~~then ascertainable~~known as of the Closing Date, the ~~adjustments thereof shall~~ prorations will be made at Closing on the basis of the ~~most recent ascertainable data. The Purchaser shall assume Seller's obligations under~~ best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion basis of the ~~real estate tax liability~~ actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller’s insurance policies will not be ~~pro-rated~~ assigned to Purchaser. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Date~~. All costs associated with telephone directory listings and any other prepaid advertisements shall~~ , in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months. (b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period following the Proration Time. “Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant’s proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such ~~prorations~~Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenants under the Leases or from other occupants or users of the Property. For purposes of this Agreement, rental is “Delinquent” when it was due prior to the Closing Date, and payment thereof has not been made on or before the Proration Time. Delinquent Rental will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rental, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to (i) pursue legal action to enforce collection of any such amounts owed to Seller by any Tenant, (ii) terminate the Lease with respect to any such Tenant, or (iii) terminate any Tenant’s right to possession under such Lease. After the Closing, if Purchaser declines to pursue a collection action against a Tenant for Delinquent Rental, then Seller shall have the right to do so; provided, however, that ~~such prorations~~ Seller shall ~~be deemed final and~~ not ~~subject~~ (A) terminate any Lease or terminate or disturb Tenant’s right to ~~further post-closing adjustments at 5:00 PM Chicago time on~~ possession thereunder, or (B) commence any lawsuit until the ~~day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions~~ earlier of ~~the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of~~ one year after the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period or one month prior to the ~~date~~ expiration of ~~Closing, free from any claim thereon by~~ the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period statute of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) limitations with respect to ~~any Lease~~ such claim. All sums collected by Purchaser from and after Closing from each Tenant (excluding tenant specific xxxxxxxx for tenant work orders and other specific services as described in and governed by Section 10.4(d) below) will be applied first to the month in which ~~will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of~~ the Closing ~~Date. 13.3. To the extent it is reasonably possible for the Seller~~ occurs, then to ~~do so, the Seller shall grant (or shall arrange for the owner thereof to grant)~~ current amounts owned by such Tenant to Purchaser ~~at Closing a temporary license~~ and ~~right~~ then to ~~use the logos currently used~~ delinquencies owed by ~~the Property which are the property of an Affiliate of~~ such Tenant to Seller~~, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant~~ . Any sums due Seller will be promptly remitted to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)

Prorations. ~~13.1. Rents~~ (~~exclusive of delinquent rents~~a) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the “Proration Time”), the following (collectively, the “Proration Items”): (i) Rents, in accordance with Section 10.4(b) below. (ii) Seller shall credit Purchaser at Closing with all cash Security Deposits and any prepaid rents, together with any interest to be paid to the Tenant thereon. (iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and ~~credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas~~ a per diem estimated adjustment shall be ~~prorated at~~ made for the days between the meter reading date and the Closing Date based on the most recent ~~ascertainable data. Seller shall pay at Closing~~ meter reading. (iv) Amounts payable under the ~~bills therefor~~ Service Contracts. (v) All real estate and personal property taxes and assessments, prorated for the period to for which such taxes and ~~including~~ assessments are assessed, regardless of when payable, on the ~~Closing~~basis of the number of days in such period the Property will have been owned by Seller and Purchaser, ~~and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto~~respectively. If the ~~utility company will~~ current tax xxxx is not ~~issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after~~ available at Closing~~. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business)~~, then ~~Purchaser shall be charged its portion of such payment at Closing. No~~ the proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable ~~data~~tax xxxx. ~~The~~ Any taxes paid at or prior to Closing shall be prorated based upon the amounts actually paid. If taxes and assessments for the fiscal year in which Closing occurs have been determined but have not been paid before Closing, Seller shall be charged and Purchaser credited at Closing with an amount equal to that portion of such taxes and assessments which relates to the period before the date of Closing, and Purchaser shall pay the taxes and assessments prior to the same becoming delinquent. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume ~~Seller's obligations under the Seller's existing~~ all expenses incurred or to be incurred in connection with any real estate tax ~~consulting agreements~~ appeals that are pending at the time of Closing. Notwithstanding anything to the contrary contained in this Agreement, Seller reserves the right to meet with governmental officials and to continue to contest any reassessment or assessment of the Property or any portion thereof as set forth on Exhibit P and to attempt to obtain a refund for any taxes previously paid. Seller shall retain all rights with respect to ~~the Properties, i.e., those agreements which Seller has entered into with firms who are entitled~~ any refund of taxes applicable to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any ~~other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith~~ period prior to the Closing Date and Purchaser shall ~~be responsible for~~ retain all rights with respect to any ~~costs associated therewith arising from and~~ refund of taxes applicable to any period on or after the Closing Date~~. All prorations described in this Agreement~~ (~~except prorations for real and personal property taxes which~~ vi) [This section intentionally omitted.] (vii) Seller shall be ~~deemed final~~ responsible for all salary, bonus (including any stock bonus) and benefits owed to the Company California Employees on account of employment prior to the Closing. To the extent that any of Westcore Management’s employee benefits impose a waiting period on new employees before such benefit will be available, and Seller or MCRC has the ability to continue comparable benefits post-Closing in favor of the Company California Employees, during all or a portion of such waiting period, payment to Seller or MCRC of the costs of continuing such benefits for such period. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as ~~prorated on~~ of the Closing Date~~) shall~~ , the prorations will be ~~subject~~ made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to ~~post-closing adjustments~~ insurance premiums, and Seller’s insurance policies will not be assigned to Purchaser. Final readings and final xxxxxxxx for utilities will be made if possible as ~~necessary to reflect later relevant information not available at~~ of the Closing ~~and to correct any errors~~ Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months. (b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period following the Proration Time. “Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant’s proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such ~~prorations~~Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenants under the Leases or from other occupants or users of the Property. For purposes of this Agreement, rental is “Delinquent” when it was due prior to the Closing Date, and payment thereof has not been made on or before the Proration Time. Delinquent Rental will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rental, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to (i) pursue legal action to enforce collection of any such amounts owed to Seller by any Tenant, (ii) terminate the Lease with respect to any such Tenant, or (iii) terminate any Tenant’s right to possession under such Lease. After the Closing, if Purchaser declines to pursue a collection action against a Tenant for Delinquent Rental, then Seller shall have the right to do so; provided, however, that ~~such prorations~~ Seller shall ~~be deemed final and~~ not ~~subject~~ (A) terminate any Lease or terminate or disturb Tenant’s right to ~~further post-closing adjustments at 5:00 PM Chicago time on~~ possession thereunder, or (B) commence any lawsuit until the ~~day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions~~ earlier of ~~the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of~~ one year after the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period or one month prior to the ~~date~~ expiration of ~~Closing, free from any claim thereon by~~ the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period statute of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) limitations with respect to ~~any Lease~~ such claim. All sums collected by Purchaser from and after Closing from each Tenant (excluding tenant specific xxxxxxxx for tenant work orders and other specific services as described in and governed by Section 10.4(d) below) will be applied first to the month in which ~~will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of~~ the Closing ~~Date. 13.3. To the extent it is reasonably possible for the Seller~~ occurs, then to ~~do so, the Seller shall grant (or shall arrange for the owner thereof to grant)~~ current amounts owned by such Tenant to Purchaser ~~at Closing a temporary license~~ and ~~right~~ then to ~~use the logos currently used~~ delinquencies owed by ~~the Property which are the property of an Affiliate of~~ such Tenant to Seller~~, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant~~ . Any sums due Seller will be promptly remitted to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)

Prorations. ~~13.1~~12.1. Rents (exclusive of delinquent rents, but including prepaid rents); ~~prepaid associations dues,~~ refundable security deposits and, if applicable under the laws of the State of North Carolina, interest thereon (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; ~~management fees in the amount of 6% of prorated rents credited to Purchaser;~~ real and personal property ~~taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability~~taxes, ~~if any, for such items);~~ operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the ~~tenants~~ Tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to against the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. ~~The~~ In addition, subject to the provisions of Paragraph 25 below, Purchaser shall ~~assume Seller's obligations~~ give Seller a credit at closing for all escrows, reserves and holdbacks held by the lender under the ~~Seller's existing real estate tax consulting agreements with respect to the Properties~~Loan Documents, ~~i.e.~~which escrows, ~~those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered~~ reserves and ~~the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any)~~ holdbacks shall be ~~treated as a portion of the real estate tax liability~~ assigned to ~~be pro-rated as of the Closing Date~~Purchaser. All ~~costs associated with telephone directory listings and any other prepaid advertisements shall~~ prorations will be ~~prorated~~ final except as of to delinquent rent referred to in Paragraph 12.2 below. 12.2. All basic rent paid following the Closing Date ~~so that Seller shall be responsible for~~ by any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions tenant of the ~~preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser~~ Property who is ~~able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent~~ indebted under a lease for basic rent ~~attributable to a tenant's occupancy of a portion of the Real Property~~ for any period prior to ~~the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to~~ and ~~until the day prior to~~ including the Closing Date, ~~provided that Seller shall not agree to reduce rents for any period of time~~ after ~~Closing in order to induce any tenants to pay delinquent rents. Seller shall not have~~ the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) payment to Purchaser at of all current basic rent, shall be deemed a "Post-Closing ~~a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller,~~ Receipt" until such time as all such indebtedness is paid in ~~place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:~~ full. Within ten (~~a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180~~10) days ~~subsequent to the date when the public telephone directory pertaining to~~ following each ~~Property is published subsequent to the~~ receipt by Purchaser of a Post-Closing ~~Date. During such period~~Receipt, Purchaser shall ~~have the right~~ pay such Post-Closing Receipt to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinSeller. Purchaser shall ~~not~~ use ~~the existing logos or trade name on stationery~~its best efforts to collect all amounts which, ~~business cards~~upon collection, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovewould constitute Post-Closing Receipts hereunder. ~~In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs~~ Within 120 days after ~~the date hereof but before~~ the Closing Date, Purchaser shall ~~have~~ deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to ~~place a listing and/or advertisement in such publication~~ conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's ~~sole cost~~ books and ~~expense. Such listing and/or advertisement may list~~ records to verify the ~~Purchaser's name~~ accuracy of the Post-Closing Receipts reconciliation statement and ~~telephone number.~~ upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller ~~may also place a listing and/or advertisement in such publication,~~ said additional Post-Closing Receipts and ~~in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of~~ the cost of ~~such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use~~ performing Seller's audit. Paragraph 12.2 of ~~such listings or advertising subsequent to~~ this Agreement shall survive the Closing ~~Date, then Purchaser shall be responsible to pay same subsequent to~~ and the ~~Closing Date (but no such payment shall accrue to the benefit~~ delivery and recording of the ~~Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)~~deed. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale (Balcor Current Income Fund 85)

Prorations. ~~13.1.~~ Collected Rents and any other amounts (~~exclusive~~ including, without limitation, payment of ~~delinquent rents~~base rent, ~~but including~~ ground rent, parking income and reimbursements of Property operating costs) paid by tenants applicable to the month in which the Date of Closing occurs or prepaid ~~rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed~~ by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for months after the ~~period prior to~~ month in which the Date of Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas occurs shall be prorated at as of the Date of Closing ~~based~~ and be adjusted against the Purchase Price on the ~~most recent ascertainable data~~basis of a schedule (the “Rent Schedule”) which shall be prepared by Seller and delivered to Purchaser two (2) business days prior to Closing. The Rent Schedule shall set forth (i) rents and other amounts payable applicable to the month in which the Date of Closing occurs, (ii) rents and other amounts collected by Seller ~~shall pay at~~ applicable to the month in which the Date of Closing ~~the bills therefor for the period to and including the Closing~~occurs, and (iii) rents and other amounts due but uncollected and applicable to the ~~Purchaser shall pay~~ month in which the ~~utility bills therefor for all periods subsequent thereto~~Date of Closing occurs, (the latter unpaid obligations being referred to herein as the “Current Delinquencies”), as well as rental and other payment delinquencies (excluding those applicable to the month in which the Date of Closing occurs) which are owed to Seller but uncollected as of the Date of Closing (“Delinquencies”). ~~If the utility company will not issue separate bills, the~~ Purchaser shall receive a credit against the Purchase Price for ~~Seller's portion~~ any cash security and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility other deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the ~~Properties~~Leases, ~~i.e., those agreements~~ which deposits are held by Seller ~~has entered into with firms who~~ and have not been applied or forfeited as of Date of Closing. Such cash deposits will be kept by Seller. In the event that any security deposits are ~~entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction~~ in the ~~real estate taxes otherwise payable~~ form of letters of credit or other financial instruments, Seller will, at Closing, assign its interest in such letters of credit or financial instruments to Purchaser, and, following Closing, Seller will cooperate with ~~respect~~ Purchaser, at no cost to ~~the Properties. The fees or commissions payable~~ Seller, in order to ~~said consultants (if any) shall be treated as a portion of the real estate tax liability~~ cause Purchaser to be ~~pro-rated~~ named as beneficiary under such letters of credit and other financial instruments to be assigned to Purchaser, and Purchaser shall not receive a credit against the Purchase Price for such security deposits. 4.4.1. Vault charges, property taxes, sewer charges, utility charges and operating expenses actually paid or payable by Seller as of the ~~Closing Date. All costs associated with telephone directory listings~~ Date of Closing, and ~~any other prepaid advertisements~~ which have not been reimbursed to Seller by tenants, shall be prorated as of the Date of Closing and adjusted against the Purchase Price, provided that within ninety (90) days after the Closing, Purchaser and Seller shall make a further adjustment for such charges which may have accrued or been incurred prior to the Date so of Closing, but not collected or paid at that date. In addition, (i) within thirty (30) days following the Closing Date, Seller shall cause the Manager to complete the tenant expense reconciliations for 2014 and deliver the reconciliation statement to Purchaser, (ii) to the extent the reconciliation statement shows a net amount owed to Seller, Purchaser shall within ten (10) days pay such amount to Seller, (iii) to the extent the reconciliation statement shows a net refund owed tenants, Seller shall within ten (10) days pay such amount to Purchaser, and (iv) Purchaser shall be responsible ~~for any costs associated therewith prior~~ delivering the reconciliation statements to the ~~Closing Date~~ tenants and paying to or billing and collecting from the tenants any amounts due to or owing by the tenants as a result of such reconciliations. Purchaser shall be responsible for completing tenant expense reconciliations for 2015 and paying to or billing and collecting from the tenants any ~~costs associated therewith arising from and after~~ amounts due to or owing by the ~~Closing Date~~tenants as a result of such reconciliations. All prorations ~~described~~ shall be made on a 365-day calendar year basis, using actual number of days in ~~this Agreement (except prorations for real and~~ the month. DAL:0590722/00075:2361764v4 Taxes. Real estate taxes, personal property taxes, special assessments (and installments thereof) and other governmental taxes and charges relating to the Property, including annual or periodic permit fees, (collectively, “Taxes”) payable during the year in which Closing occurs shall be ~~deemed final~~ prorated as ~~prorated on~~ of the Date of Closing ~~Date)~~ and adjusted against the Purchase Price. If Closing occurs before the actual Taxes payable during such year are known, the proration of Taxes shall be ~~subject to post-closing adjustments as necessary to reflect later relevant information not available at~~ upon the ~~Closing and to correct any errors made at~~ basis of Taxes for the ~~Closing with respect to such prorations~~Property payable by Seller during the immediately preceding year; provided, however, that if the Taxes payable during the year in which Closing occurs are thereafter determined to be more or less than the Taxes payable during the preceding year (after any appeal of the assessed valuation thereof is concluded), Seller and Purchaser promptly (but no later than November 15, 2015), except in the case of an ongoing tax protest), shall adjust the proration of Taxes and Seller or Purchaser, as the case may be, shall pay to the other any amount required as a result of such ~~prorations~~ adjustment, and further provided that any reproration of an increase in real estate taxes shall take into account only increases in the tax rate or millage, i.e., any portion of any real estate tax increase attributable to an increase in assessed value shall not be taken into account. The parties shall reasonably cooperate with each other in any efforts to obtain a reduction in real estate taxes assessed against the Property. All refunds or tax savings relating to real estate taxes (a) shall inure to the benefit of Seller if such refunds or tax savings relate to any period for which Seller owned the Property and (b) shall inure to the benefit of Purchaser if such refunds or tax savings relate to any period for which Purchaser owned the Property; provided, however, each party shall pay its proportionate share of the legal and consulting fees actually incurred in connection with either party’s application for such refunds and tax savings, which proportionate share shall be ~~deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time~~ based on the ~~day which is thirty (30) days following Closing, at which time all prorations~~ amount of tax refunds or tax savings received by each party. This covenant shall ~~be deemed final and~~ not ~~subject to further post-closing adjustment. The provisions of~~ merge with the ~~preceding sentence~~ deed delivered hereunder but shall survive the Closing~~. 13.2~~. ~~Rents which are delinquent as~~ If for the current ad valorem tax year the taxable value of the ~~Closing Date shall~~ Property is determined by a special appraisal method that allows for appraisal of the Property at less than its market value, the person to whom the Property is transferred may not be ~~prorated~~allowed to qualify the Property for that special appraisal in a subsequent tax year and the Property may then be appraised at its full market value. ~~Instead, to the extent that Purchaser is able to collect said delinquencies~~In addition, the ~~Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion~~ transfer of the ~~Real~~ Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing or a subsequent change in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of ~~such listings~~ the Property may result in the imposition of an additional tax plus interest as a penalty for the transfer or ~~advertising subsequent to~~ change in the ~~Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit~~ use of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth aboveProperty. ~~If Purchaser continues to use the name currently being used by~~ The taxable value of the Property ~~subsequent to~~ and the ~~expiration date~~ applicable method of ~~this temporary license set forth above, then Purchaser shall~~ appraisal for the current tax year is public information and may be ~~liable~~ obtained from the tax appraisal district established for ~~and shall pay to~~ the ~~owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after~~ county in which the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is ~~located to prevent such unauthorized use or to recover any damages authorized by such laws~~located.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Hartman Short Term Income Properties XX, Inc.)

Prorations. ~~13.1. Rents~~ (~~exclusive of delinquent rents~~a) As between Assignee and Tenant, ~~but including prepaid rents); prepaid associations dues~~revenues and expenses, ~~refundable security deposits (~~utility charges for the billing period in which ~~will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in~~ the ~~amount of 6% of prorated rents credited to Purchaser;~~ Transfer Date occurs, real and personal property ~~taxes~~ taxes, certain prepaid expenses and other related items of revenue or expense attributable to the Facility shall be prorated ~~on a "net" basis (i.e. adjusted~~ between Tenant and Assignee as of the Transfer Date. In general, such prorations shall be made so that as between Assignee and Tenant, Tenant shall be reimbursed for ~~all tenants' liability, if any, for such items); operating expenses which~~ prepaid expense items to the extent that the same are ~~reimbursable by~~ attributable to periods after the ~~tenants~~ Transfer Date and Tenant shall remain responsible for the ~~period~~ payment as and when due of unpaid expenses to the extent that the same are attributable to periods prior to the ~~Closing Date less any amount previously paid by the tenants~~ Transfer Date. The intent of this provision shall be ~~credited~~ implemented by Assignee remitting to ~~Seller;~~ Tenant any invoices which describe goods or services provided to the Facility before the Transfer Date and ~~other similar items~~ by Assignee assuming responsibility for the payment of any invoices which describe goods or services provided to the Facility on and after the Transfer Date. (b) All such prorations shall be ~~adjusted ratably as of 11:59 p.m.~~ made on the ~~Closing Date,~~ basis of actual days elapsed in the relevant accounting or revenue period and ~~credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas~~ shall be ~~prorated at Closing~~ based on the most recent ~~ascertainable data~~information available to Tenant. ~~Seller~~ Utility charges which are not metered and read on the Transfer Date shall ~~pay at Closing the bills therefor for the period to and including the Closing~~be estimated based on prior charges, and shall be re-prorated upon receipt of statements therefor as of the ~~Purchaser~~ Transfer Date. (c) All amounts which are subject to proration under the terms of this Agreement and which require adjustment after the Transfer Date shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than be settled within thirty (30) days ~~in advance~~ after the Transfer Date or, in the ~~ordinary course of business), then Purchaser shall be charged its portion of~~ event the information necessary for such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated adjustment is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to available within said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) day period, then within ten (10) business days ~~following Closing, at which time all prorations shall be deemed final and not~~ of receipt of information by either party necessary to settle the amounts subject to ~~further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing~~proration. ~~13.2. Rents which are delinquent as of~~ (d) On the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Transfer Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser Tenant shall have the right to ~~use~~ remove any xxxxx cash (as compared to resident funds) then being maintained by Tenant at the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the SellerFacility. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Lease Assignment and Operations Transfer Agreement (Emeritus Corp\wa\)

Prorations. ~~13.1~~(a) The Parties will each execute and deliver to Escrow Agent for the Closing a closing statement setting forth the Purchase Price and all closing credits, prorations, charges, costs and adjustments contemplated by this Agreement. ~~Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which~~ All prorations will be ~~assigned~~ calculated as of the Closing Date by Escrow Agent, based upon the latest available information, with income and expense for the Closing Date being allocated to ~~and assumed~~ Buyer. Buyer will receive a credit for any rent paid or payable by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants Tenant for the period ~~prior to~~ beginning with and including the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to through and including the ~~Closing,~~ last day of the month in which Closing occurs. All other credits and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion charges to Buyer and ~~shall pay the entire utility bill after Closing. If~~ Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be ~~assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be~~ similarly prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. Real estate taxes and assessments, if not the sole responsibility of Tenant under the Lease, will be prorated on an accrual basis and, if actual amounts are not available, will be based upon the current valuation and latest available tax rates or assessments. All ~~costs associated with telephone directory listings~~ pre-paid or abated rents or deposit amounts (including any tax or expense escrows and any security deposits) held by Seller under the Leases, if any, will be paid to Buyer in the form of a credit against the Purchase Price. If after Closing either Party receives any rents or other ~~prepaid advertisements shall~~ amounts that properly belong to the other Party based up on the Closing prorations, such amounts will be ~~prorated as of~~ immediately remitted to such other Party. (b) If after Closing either Party discovers any errors, or receives additional information, indicating that the prorations were inaccurate, such Party will promptly notify the other and the Parties will correctly re-prorate the amounts in question. No such correction will be required later than twelve (12) months after the Closing Date ~~so that Seller shall be responsible for any costs associated therewith~~ unless prior to such date the ~~Closing Date~~ Party seeking the correction has given a written notice to the other Party specifying the nature and ~~Purchaser shall be responsible~~ basis for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such ~~prorations~~correction; provided, however, that if a correction is sought because current tax or assessment bills for the Property were not available as of Closing, the correction period with respect to the closing proration of such ~~prorations shall be deemed final and not subject to further post~~taxes or assessments will if needed continue beyond such 12-~~closing adjustments at 5:00 PM Chicago time on the day which is~~ month period until thirty (30) days ~~following Closing~~after Buyer’s receipt of the applicable bills. In the event of any re-proration under this Section, ~~at which time all prorations shall~~ the Party owing funds will within thirty (30) days after determination remit to the other Party the amount shown to be ~~deemed final and not subject to further post-closing adjustment~~due. The provisions of ~~the preceding sentence~~ this Section 12 shall survive ~~the~~ Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)

Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements following shall be prorated as of the Closing Date ~~so that~~ and the Purchase Price shall be adjusted accordingly at Closing: (a) rents and any other amounts actually collected from tenants and other persons using or occupying the Properties as of the Closing Date; (b) sewer charges, utility charges (utility charges shall be prorated based on the last reading of meters prior to Closing performed at Seller’s request, if possible) and normally prorated operating expenses actually billed or paid as of the Closing Date; and (c) amounts owed by Seller or paid under the Service Contracts as of the Closing Date. Purchaser shall at all times after Closing use commercially reasonable efforts (not to include commencing any eviction action or other litigation to collect such delinquency) to collect all rent or other amounts owed for the period prior to Closing, and Seller shall retain the right for up to ninety (90) days after Closing to pursue all PFS:009462.0002.2820427.11 remedies (not to include commencing any eviction action or other litigation to collect such delinquency, or terminating any lease) against tenants under Leases to collect such rents and other amounts due to Seller. All rent received by Purchaser or Seller after the Closing Date shall be ~~responsible for any costs associated therewith~~ applied first to current rentals, then to delinquent rents accruing in the month of Closing and then, to the extent the applicable tenant identifies such rent as attributable to the period prior to Closing, to delinquent rentals accruing prior to the Closing ~~Date~~ Date. The agreements of Seller and Purchaser ~~shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described~~ set forth in this ~~Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date~~Section 8(a) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Inland Real Estate Income Trust, Inc.)

Prorations. ~~13.1~~Buyer presently occupies the Property as the sole tenant under a triple net Lease with Seller. ~~Rents (exclusive~~ As such, all taxes, utilities, and certain operating expenses associated with the Property are paid by Buyer, as tenant. As such, none of ~~delinquent rents~~these expenses shall be prorated at Closing. However, ~~but including prepaid rents); prepaid associations dues~~at Closing, ~~refundable security deposits (which~~ the following adjustments will be ~~assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in~~ made: (1) Buyer will receive credit for the amount of ~~6% of prorated rents credited to Purchaser;~~ all real ~~and personal~~ property taxes paid by tenant to Seller for the year of Closing through Closing, and Buyer shall be responsible for, and take title to the Property subject to all real property taxes for the year of Closing; (2) Although rent will be prorated on as of Closing, the operating (triple net) expenses (excepting real property taxes) will not be. Seller estimates that the operating (triple net) expenses (excepting real property taxes) paid by tenant through the month of Closing will closely approximate what Seller will have spent (or be obligated to pay) for the period from January 31, 2004 through to the Closing. (3) Utilities will be transferred to Buyer as of Closing; and (4) If either party desires to have a "reconciliation of the 2004 operating (triple net~~" basis~~ ) expenses (~~i.e. adjusted for~~ excepting real property taxes) as of Closing, that party must notify the other in writing within fifteen (15) days following Closing. Absent such notice, both parties will be deemed to have waived any right under the Lease to a reconciliation and to have accepted the allocation of expenses as described in subsection b above as final. In the event either party elects to have such a reconciliation, all ~~tenants' liability~~operating (triple net) expenses (excepting real property taxes) will be reconciled as of the date of Closing. Following the reconciliation, if requested, Buyer will pay to Seller the amount, if any, ~~for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously~~ that Seller has paid in excess of amounts paid by tenant under the ~~tenants shall be credited~~ Lease; Seller will pay to ~~Seller~~Buyer the amount, if any, that tenant has paid in excess of amounts actually due under the Lease; and ~~other similar items shall be adjusted ratably as of 11:59 p.m. on~~ the ~~Closing Date, and credited to~~ party requesting the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company reconciliation will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the ~~owner~~ other $1,000.00 unless the reconciliation results in the requesting party receiving payment in excess of ~~said rights a license fee equal to One Hundred Dollars (~~$100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days2,000.00. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Contract to Buy and Sell Real Estate (Carrier Access Corp)

Prorations. ~~13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to~~ Prorations between Seller and ~~assumed by~~ Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than made within thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing ~~Date~~as follows: (a) All taxes and assessments on the Assets for all prior years and all current year taxes and assessments that are due and payable on or before the Closing shall have been paid in full by Seller on or before the Closing. All ~~costs associated with telephone directory listings~~ general real estate, personal property and ~~any other prepaid advertisements~~ ad valorem taxes and assessments for the current year only shall be prorated as of the Closing Date ~~so that Seller~~ on the basis of the most recent available information, as adjusted by any known changes relating to the period during which the Closing occurs, but without any adjustment resulting from the sale of the Assets under this Agreement. (b) All charges for gas, electricity, water, telephone, sewer and other utilities shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date ~~shall~~ on the basis of the most recent available information, as reasonably adjusted to account for known variances from usage that would not otherwise be ~~prorated~~reflected in such information. ~~Instead~~For purposes of calculating prorations, ~~to the extent that Purchaser is able to collect said delinquencies, the~~ Purchaser shall be entitled to ~~receive~~ the income accruing to Seller and responsible for the Losses and expenses accruing to Seller for the entire day upon which the Closing occurs. All such ~~delinquent rent attributable to a tenant's occupancy of a portion~~ prorations shall be made on the basis of the ~~Real Property for any period prior~~ actual number of days of the month which shall have elapsed as of the day of the Closing and based upon a 365- day year. The amount of such prorations shall be subject to adjustment in cash after the ~~date of~~ Closing, ~~free from any claim thereon by the Seller~~as and when more complete and accurate information becomes available. Seller and Purchaser agree to cooperate and use commercially reasonable efforts to make such adjustments not later than sixty (60) days after the Closing Date (which cooperation may ~~use whatever lawful means are available to Seller to collect~~ include any ~~delinquencies up to~~ reasonable inspection of Seller’s books and ~~until the day~~ records). At least three (3) Business Days prior to the Closing Date, ~~provided that~~ Seller shall ~~not agree~~ deliver to ~~reduce rents for any period~~ Purchaser a tentative statement of ~~time after Closing in order~~ prorations setting forth the preliminary determination of all items to ~~induce any tenants~~ be prorated pursuant to ~~pay delinquent rents~~this Section 2.06 and supported by all detail reasonably necessary to make such determination. Prior to the Closing, Purchaser and Seller shall ~~not have the right subsequent~~ use commercially reasonable efforts to ~~Closing to seek (by legal action or otherwise) the collection~~ agree on such statement of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Dateprorations. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Asset Purchase Agreement

Prorations. ~~13.1~~12.1. ~~Rents~~ Xxxts (exclusive of delinquent rents, but including prepaid rents); ~~prepaid associations dues~~refundable security, ~~refundable security~~ pet and other deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid on-site operating expenses~~; management fees in the amount of 6% of prorated rents credited to Purchaser~~; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellertaxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to against the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are not due ~~subsequent to~~ until after the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. ~~The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect~~ All prorations will be final except as to ~~the Properties, i.e., those agreements which Seller has entered into with firms who are entitled~~ delinquent rent referred to ~~a commission based on services rendered and the extent to which they are able to achieve a reduction~~ in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing DateParagraph 12.2 below. 12.2. All ~~costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of~~ basic rent paid following the Closing Date ~~so that Seller shall be responsible~~ by any tenant of the Property who is indebted under a lease for basic rent for any ~~costs associated therewith~~ period prior to and including the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed ~~final~~ a "Post-Closing Receipt" until such time as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to all such ~~prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which~~ indebtedness is paid in full. Within thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that each receipt by Purchaser ~~is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy~~ of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Post-Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such periodReceipt, Purchaser shall ~~have the right~~ pay such Post-Closing Receipt to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinSeller. Purchaser shall ~~not~~ use ~~the existing logos or trade name on stationery~~its best efforts to collect all amounts which, ~~business cards~~upon collection, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovewould constitute Post-Closing Receipts hereunder. ~~In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs~~ Within 120 days after ~~the date hereof but before~~ the Closing Date, Purchaser shall ~~have~~ deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to ~~place a listing and/or advertisement in such publication~~ conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's ~~sole cost~~ books and ~~expense. Such listing and/or advertisement may list~~ records to verify the ~~Purchaser's name~~ accuracy of the Post-Closing Receipts reconciliation statement and ~~telephone number.~~ upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller ~~may also place a listing and/or advertisement in such publication~~said additional Post-Closing Receipts and, ~~and in~~ if the ~~event that~~ additional funds owing to Seller ~~decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of~~ exceed $1,000 the cost of ~~such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use~~ performing Seller's audit. Paragraph 12.2 of ~~such listings or advertising subsequent to~~ this Agreement shall survive the Closing ~~Date, then Purchaser shall be responsible to pay same subsequent to~~ and the ~~Closing Date (but no such payment shall accrue to the benefit~~ delivery and recording of the ~~Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)~~deed. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale (Balcor Realty Investors 84)

Prorations. ~~13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to~~ 15.1 Water and ~~assumed by Purchaser and credited to Purchaser at Closing)~~other utility charges; fuels; prepaid operating expenses~~; management fees in the amount of 6% of prorated rents credited to Purchaser~~; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' ~~liability~~liabilities, if any, for such items); tenant reimbursement obligations for operating expenses ~~which are reimbursable~~ paid by Seller for the ~~tenants~~ period prior to the Closing Date; unpaid operating expenses for the period prior to the Closing Date ~~less any amount previously paid by the tenants shall be credited to Seller~~prorated on a "net" basis, as set forth above; and all other ~~similar~~ items of expense and income shall be adjusted ratably as of ~~11:59 p.m.~~ 12:01 a.m. on the Closing Date ("Proration Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business"), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be ~~reimbursed at Closing~~ entitled to a credit for ~~any~~ all transferable utility deposits transferred hereunder, if any, and all other utility deposits, if any, may be withdrawn by and refunded to Seller and Purchaser shall make its own replacement deposits for utilities as may be required by the respective utilities involved. Assessments, excluding regular ad valorem real estate taxes, payable in installments which ~~the Seller has deposited with any utility company and which will be assigned~~ are due prior to the ~~Purchaser at Closing~~Closing Date shall be paid by Seller. ~~Assessments~~ Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. ~~The Purchaser shall assume Seller's obligations under the Seller's existing~~ If any ongoing real estate tax ~~consulting agreements with respect to the Properties, i.e., those agreements which Seller~~ contest has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated not been finalized as of the Closing Date, Purchaser and Seller agree that the tax bill existing prior to the contexx, shall be the most recent data for the tax year being contested and (i) Purchaser agrees to re-prorate such amount as it relates to the real estate tax proration for the current tax year to the extent such tax contest is successful. All ~~costs associated with telephone directory listings~~ other prorations will be final except as provided in Paragraphs 15.2, 15.3 and ~~any~~ 15. 15.2 All base rent, percentage rent and other ~~prepaid advertisements~~ common area maintenance, tax and insurance charges actually paid by tenants under the Leases and all other items of income actually received from the operation of the Property (all such charges other than base rent, "Additional Rent") shall be prorated as of the ~~Closing Date so that~~ Proration Date. To the extent the Leases provide for the adjustment of previously paid estimates of Additional Rent on a date after the Proration Date, Seller shall be entitled to receive, or shall be responsible ~~for~~ to pay, as the case may be, its pro rata share of any ~~costs associated therewith~~ such adjusted amounts which are applicable to periods ending prior to the Proration Date. If the Additional Rent due from tenants for 1996 (exclusive of Additional Rent due from Corestates Bank) is less than $20,000, Seller shall receive a credit from Purchaser at Closing ~~Date~~ for such amount due, and such credit shall be final, irrespective of the amounts actually collected by Purchaser from tenants). If the Additional Rent due from tenants for 1996 is greater than $20,000 (exclusive of Additional Rent due from Corestates Bank), Purchaser's credit to Seller for amounts in excess of $20,000 shall be escrowed at Closing, and disbursed to Seller based on the amount actually collected from tenants. Notwithstanding the foregoing, Purchaser shall not be ~~responsible~~ obligated to credit Seller at Closing for any ~~costs associated therewith arising~~ Additional Rent due from Corestates Bank in excess of $20,000 and ~~after the Closing Date. All prorations described~~ any amount due from Corestates Bank in ~~this Agreement (except prorations for real and personal property taxes which~~ excess of $20,000 shall be ~~deemed final as prorated on~~ escrowed and disbursed in the ~~Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at~~ same manner provided in the ~~Closing and to correct any errors made at the Closing~~ foregoing sentence with respect to Additional Rent due from other tenants. Purchaser shall deliver to each tenant of the Property (with a copy of each to Seller) a final reconciliation of Additional Rent due for calendar year 1996 on or before March 15, 1996. Purchaser shall use reasonable efforts (without any obligation to terminate leases or initiate lawsuits) to collect such ~~prorations; provided~~Additional Rent from such tenants. On or before June 1, ~~however~~1996, ~~that such prorations~~ Purchaser shall provide Seller with a reconciliation of the amount of all Additional Rent collected from tenants for calendar year 1996, and the amount so collected shall be ~~deemed final and not subject~~ promptly disbursed from the aforementioned escrow to ~~further post-closing adjustments at 5:00 PM Chicago time on~~ Seller (or paid by Purchaser to Seller from amounts collected, if the ~~day which~~ escrowed amount is ~~thirty (30) days following Closing~~less than the full amount of Additional Rent collected for calendar year 1996). Notwithstanding anything to the contrary herein, ~~at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The~~ the provisions of ~~the preceding sentence~~ this Paragraph shall survive the Closing. ~~13.2. Rents which are delinquent as of~~ 15.3 All basic rent paid following the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion by any tenant of the ~~Real~~ Property who is indebted under a Lease for basic rent for any period prior to the ~~date~~ Proration Date in an amount greater than the amount of ~~Closing, free from any claim thereon~~ all current basic rent owed by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the said tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at shall be deemed a "Post-Closing ~~a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller,~~ Receipt" until such time as all such indebtedness is paid in ~~place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:~~ full. Within ten (~~a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180~~10) days ~~subsequent to the date when the public telephone directory pertaining to~~ following each ~~Property is published subsequent to the~~ receipt by Purchaser of a Post-Closing ~~Date. During such period~~Receipt, Purchaser shall ~~have the right~~ pay such Post-Closing Receipt to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinSeller. Purchaser shall ~~not~~ use ~~the existing logos~~ its reasonable, good faith efforts, at no additional cost or ~~trade name on stationery~~expense to Purchaser, ~~business cards~~to collect all amounts which, ~~contracts or other documents~~upon collection, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovewould constitute Post-Closing Receipts hereunder. ~~In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs~~ Within 180 days after ~~the date hereof but before~~ the Closing Date, Purchaser shall ~~have~~ deliver to Seller a reconciliation statement of Post-Closing Receipts through the ~~right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense~~first 150 days after the Closing Date. ~~Such listing and/or advertisement may list~~ Upon the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion delivery of the ~~cost~~ Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Purchaser shall provide Seller with any information reasonably necessary to verify the accuracy of ~~such listing and/or advertisement attributable~~ the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. This Paragraph 15.3 of this Agreement shall survive the Closing and the delivery and recording of the Deed. 15.4 All refunds in connection with any ongoing real estate tax protests for the Property initiated by Seller prior to the ~~period after Closing. (d)~~ Closing shall remain the property of Seller and are not being assigned by Seller to Purchaser pursuant to this Agreement. In the event any ~~third party (~~such ~~as telephone company~~ refunds are paid to Purchaser, Purchaser agrees to promptly remit all such sums to Seller. Purchaser agrees, at no cost or ~~billboard company) makes a separate charge for the use of~~ expense to Purchaser, to execute any documents reasonably requested by Seller in connection with such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)tax protests. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Sale Agreement (Balcor Equity Pension Investors I)

Prorations. ~~13.1. Rents~~ 5.2.1 Rentals (~~exclusive of delinquent rents~~including fixed monthly rentals and other periodic rentals, ~~but including~~ additional rentals, operating cost pass- throughs and other sums and charges payable by the tenants), prepaid ~~rents);~~ rentals and prepaid ~~associations dues~~payments (collectively, ~~refundable~~ "Rent") shall, subject to the further provisions hereof, be prorated on the basis that Buyer shall receive a credit for all Rent which Seller has actually received before the Closing which is allocable to the period after the Closing and for all security deposits ~~(which will be assigned~~ paid to ~~and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees~~ the landlord under the Leases as referenced in the Leases, less only the amount ~~of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability~~thereof, if any, Seller shall have applied pursuant to one or more Leases (in which event Seller shall provide Buyer with a written explanation of the application of same). Seller shall not receive a credit for ~~such items); operating expenses~~ any Rent Seller has not received as of the Closing which ~~are reimbursable by the tenants for~~ is allocable to the period prior to the Closing. If Buyer shall collect any such Rent after the Closing ~~Date less any amount previously paid by~~ (Buyer shall exert good faith efforts to collect such Rent), Buyer shall promptly pay the ~~tenants shall be credited~~ same to Seller~~; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas~~ . 5.2.2 Real estate taxes shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as ~~no more than thirty (30) days in advance in the ordinary course~~ of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing ~~Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be~~ on the basis of the most recent ~~ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect~~ assessed valuation of and rates and multiplier applicable to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) Property. 5.2.3 Utilities shall be ~~treated as a portion~~ read at the Closing Date and Seller shall be responsible for payment of such utilities. Buyer shall establish new utility accounts and shall be responsible for all utilities from and after the Closing. 5.2.4 Common area and maintenance charges, property taxes, insurance and other operating cost pass-throughs payable by tenants of the ~~real estate tax liability to be pro-rated~~ Project which accrue as of the Closing Date, but which are not then due and payable (collectively, the "Operating Expenses"), shall not be prorated, except as herein provided. ~~All costs associated~~ Buyer shall receive and retain any Operating Expenses paid by tenants of the Project on or after the Closing Date and Seller shall receive and retain any Operating Expenses paid by tenants of the Project prior to the Closing Date; provided, however, that any monthly or periodic deposits or payments of estimated Operating Expenses with ~~telephone directory listings and any other prepaid advertisements~~ respect to the month in which the Closing occurs received by Seller prior to the Closing Date or by Buyer on or after the Closing Date shall be prorated as of the Closing ~~Date so that~~ Date. Buyer and Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is cooperate within thirty (30) days ~~following Closing~~after Closing to reconcile actual Operating Expenses collected by Seller from Project tenants prior to Closing with actual Operating Expenses paid by Seller with respect to such period, ~~at which time all prorations~~ so that if there are any rebates owing to Project tenants for the period of Seller's ownership, Seller shall be ~~deemed final~~ charged therefor, and ~~not subject to further post-closing adjustment. The provisions of~~ if the ~~preceding sentence shall survive~~ Project tenants owe the ~~Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead,~~ landlord any additional amounts for Operating Expenses with respect to the ~~extent that Purchaser is able~~ period of Seller's ownership, and actually pay such amounts to Buyer (Buyer agrees to exert good faith efforts to collect ~~said delinquencies~~the same), ~~the Purchaser~~ Seller shall be entitled to receive such ~~delinquent rent attributable to a tenant's occupancy~~ amounts from Buyer. Any prorations under this Agreement shall be based upon the actual number of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closingapplicable period. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Arden Realty Inc)

Prorations. ~~13.1~~4.2.1. ~~Rents~~ The following shall be apportioned with respect to the Property as of 12:01 a.m. on the day of Closing (~~exclusive of delinquent~~ the "PRORATION DATA"), as if Purchaser were vested with title to the Property during the entire day upon which Closing occurs: (a) rents, ~~but~~ pursuant to the terms of all tenant leases (the term "rents" as used in this Agreement includes all payments due and payable by tenants under the Leases); (b) taxes (including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes ~~prorated~~ on ~~a "net" basis~~ the Personal Property) and assessments levied against the Property; provided, however, that taxes and assessments with respect to portions of the Property payable or reimbursable by Tenants in arrears (~~i.e. adjusted~~ other than pro rata monthly payments) shall not be apportioned, except to the extent collected and related to periods of time after the Closing Date; (c) gas, electricity and other utility charges for ~~all tenants' liability~~which Seller is liable, if any, ~~for~~ such ~~items); operating expenses which are reimbursable by the tenants for the period prior~~ charges to ~~the Closing Date less any amount previously paid by the tenants shall~~ be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated apportioned at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ~~ascertainable data~~meter reading occurring prior to Closing; (d) charges under the Surviving Service Contracts (as defined in Section 8.3 herein); and (e) 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. 4.2.2. ~~The Purchaser shall assume~~ Notwithstanding anything contained in the foregoing provisions: (a) At Closing, (i) Seller shall, at Seller's ~~obligations under~~ option, either deliver to Purchaser all security deposits held by Seller pursuant to the Leases or credit to the account of Purchaser the amount of such security deposits, and (ii) Purchaser shall, subject to its review and approval during the Inspection Period, credit to the account of Seller all refundable cash or other deposits posted with utility companies serving the Property, or, at Seller's ~~existing real estate tax consulting agreements with respect to the Properties~~option, ~~i.e., those agreements which~~ Seller ~~has entered into with firms who are~~ shall be entitled to ~~a commission based on services rendered~~ receive and ~~the extent~~ retain such refundable cash and deposits. (b) Any taxes paid at or prior to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing ~~Date. All costs associated with telephone directory listings and any other prepaid advertisements~~ shall be prorated ~~as of~~ based upon the ~~Closing Date so that~~ amounts actually paid. If taxes and assessments for the current year have not been paid before Closing, Seller shall be ~~responsible for any costs associated therewith prior~~ charged at Closing an amount equal to that portion of such taxes and assessments which relates to the ~~Closing~~ period before the Proration Date and Purchaser shall ~~be responsible for any costs associated therewith arising from~~ pay the taxes and ~~after the Closing Date~~assessments prior to their becoming delinquent. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors Any such apportionment made ~~at the Closing~~ with respect to ~~such prorations; provided~~a tax year for which the tax rate or assessed valuation, ~~however~~or both, ~~that such prorations~~ have not yet been fixed shall be ~~deemed final~~ 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. (c) Charges referred to in Section 4.2.1 above, which are payable by any tenant to a third party, shall not be apportioned hereunder, and Purchaser shall accept title subject to ~~further post~~any of such unpaid charges and Purchaser shall look solely to the tenant responsible therefor for the payment of the same. Subject to Purchaser's review and approval during the Inspection Period, if Seller shall have paid any of such charges on behalf of any tenant, and shall not have been reimbursed therefor by the time of Closing, Purchaser shall credit to Seller an amount equal to all such charges so paid by Seller. (d) Seller shall receive the entire advantage of any discounts for any prepayment made by Seller of any taxes, water rates or sewer rents applicable to all pre-closing ~~adjustments at 5:00 PM Chicago time on~~ periods. (e) As to gas, electricity and other utility charges referred to in Section 4.2.l(c) above, Seller may, after notice to Purchaser, elect to pay one or more or all of said items accrued to the ~~day which is thirty (30) days following Closing~~date hereinabove fixed for apportionment directly to the person or entity entitled thereto, ~~at which time all prorations~~ and to the extent Seller so elects, such item shall not be ~~deemed final~~ apportioned hereunder, and ~~not subject~~ Seller's obligation to ~~further post-closing adjustment. The provisions of the preceding sentence~~ pay such item directly in such case shall survive the Closing. ~~13.2~~(f) The Personal Property, if any, is included in this sale, without further charge, except that Purchaser shall pay to Seller the amount of any and all sales or similar taxes payable in connection with the Personal Property and Purchaser shall execute and deliver any tax returns required of it in connection therewith, said obligations of Purchaser to survive Closing. (g) Purchaser shall be responsible for the payment of all Tenant Inducement Costs (as hereinafter defined) which become due and payable (whether before or after Closing) (i) as a result of any renewals or expansions of existing Leases (approved by Purchaser whose approval shall not be unreasonably withheld) between the Effective Date of this Agreement and the date of Closing, and (ii) under any new Leases (approved by Purchaser whose approval shall not be unreasonably withheld) entered into between the Effective Date of this Agreement and the date of Closing. ~~Rents which~~ At Closing, Seller shall be responsible for the payment of all Tenant Inducement Costs for Leases that were entered into by Seller before the Effective Date of this Agreement, and that are ~~delinquent~~ not the result of any renewals or expansions of existing Leases. If, as of the ~~Closing Date~~ date of Closing, Seller shall ~~not be prorated. Instead,~~ have paid any Tenant Inducement Costs for which Purchaser is responsible pursuant to the ~~extent that~~ foregoing provisions, Purchaser shall reimburse Seller therefor at Closing. For purposes hereof, the term "Tenant Inducement Costs" shall mean tenant improvement costs, tenant improvement allowances, and broker commissions, and shall expressly exclude free rent, if any. (h) Unpaid and delinquent rent collected by Seller and Purchaser after the date of Closing shall be delivered as follows: (i) if Seller collects any unpaid or delinquent rent for the Property, Seller shall, within fifteen (15) days after the receipt thereof, deliver to Purchaser any such rent which Purchaser is ~~able to collect said delinquencies, the Purchaser shall be~~ entitled to ~~receive such~~ hereunder relating to the date of 4 Closing and any period thereafter, and (ii) if Purchaser collects any unpaid or delinquent rent ~~attributable~~ from the Property, Purchaser shall, within fifteen (15) days after the receipt thereof, deliver to ~~a tenant's occupancy of a portion of~~ Seller any such rent which Seller is entitled to hereunder relating to the ~~Real Property for any~~ period prior to the date of Closing~~, free from any claim thereon by the Seller~~. Seller ~~may use whatever lawful means are available~~ and Purchaser agree that (iii) all rent received by Seller or Purchaser within the first fifteen (15) day period after the date of Closing shall be applied first to delinquent rentals, if any, in the order of their maturity, and then to current rentals, and (iv) all rent received by Seller or Purchaser after the first fifteen (15) day period 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 commercially reasonable 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 ~~delinquencies up~~ lawsuit or other collection procedures to ~~and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay~~ collect delinquent rents. Seller ~~shall not have the right subsequent~~ may elect itself to ~~Closing to seek (by legal action or otherwise) the collection of~~ collect any unpaid rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which ~~will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent~~ were due as of the date of Closing ~~Date. 13.3. To the extent it is~~ by instituting a lawsuit or other collection procedures and Purchaser agrees to cooperate reasonably ~~possible for the Seller~~ with same at no cost or expense to ~~do so, the~~ Purchaser; but Seller shall ~~grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and~~ have no right to ~~use the logos currently used by the Property which are the property~~ terminate any lease on account of ~~an Affiliate of Seller~~such nonpayment or to commence any eviction, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, dispossessory or distraint proceedings with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovethereto. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller there shall be ~~entitled~~ any rents or other charges under any Leases which, although relating to a ~~pro-rata credit for such portion of the cost of such listing and/or advertisement attributable~~ period prior to ~~the period~~ Closing, do not become due and payable until after ~~Closing. (d) In the event any third party~~ Closing or are paid prior to Closing but are subject to adjustment after Closing (such as ~~telephone company~~ percentage rental payments, year end common area expense reimbursements and the like), then any rents or ~~billboard company) makes a separate charge for the use~~ charges of such ~~listings~~ type received by Purchaser or ~~advertising~~ its agents or Seller or its agents subsequent to Closing shall, to the ~~Closing Date~~extent applicable to a period prior to and as of the day of Closing, ~~then~~ be prorated between Seller and Purchaser as of the Proration Date and Seller's portion thereof shall be ~~responsible~~ remitted promptly to ~~pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the~~ Seller ~~or constitute a credit against a debt otherwise owed~~ by ~~the Seller to said third party). (e)~~ Purchaser and/or Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser portion thereof shall be ~~liable for and shall pay~~ remitted promptly to Purchaser by Seller, as the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional dayscase may be. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement for Purchase and Sale (Inland Western Retail Real Estate Trust Inc)

Prorations. ~~13.1. Rents~~ (~~exclusive of delinquent rents~~a) As between Assignee and Tenant, ~~but including prepaid rents); prepaid associations dues~~revenues and expenses, ~~refundable security deposits (~~utility charges for the billing period in which ~~will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in~~ the ~~amount of 6% of prorated rents credited to Purchaser;~~ Transfer Date occurs, real and personal property ~~taxes~~ taxes, certain prepaid expenses and other related items of revenue or expense attributable to the Facility shall be prorated ~~on a "net" basis (i.e. adjusted~~ between Tenant and Assignee as of the Transfer Date. In general, such prorations shall be made so that as between Assignee and Tenant, Tenant shall be reimbursed for ~~all tenants' liability, if any, for such items); operating expenses which~~ prepaid expense items to the extent that the same are ~~reimbursable by~~ attributable to periods after the ~~tenants~~ Transfer Date and Tenant shall remain responsible for the ~~period~~ payment as and when due of unpaid expenses to the extent that the same are attributable to periods prior to the ~~Closing Date less any amount previously paid by the tenants~~ Transfer Date. The intent of this provision shall be ~~credited~~ implemented by Assignee remitting to ~~Seller;~~ Tenant any invoices which describe goods or services provided to the Facility before the Transfer Date and ~~other similar items~~ by Assignee assuming responsibility for the payment of any invoices which describe goods or services provided to the Facility on and after the Transfer Date. (b) All such prorations shall be ~~adjusted ratably as of 11:59 p.m.~~ made on the ~~Closing Date,~~ basis of actual days elapsed in the relevant accounting or revenue period and ~~credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas~~ shall be ~~prorated at Closing~~ based on the most recent ~~ascertainable data~~information available to Tenant. ~~Seller~~ Utility charges which are not metered and read on the Transfer Date shall ~~pay at Closing the bills therefor for the period to and including the Closing~~be estimated based on prior charges, and shall be re-prorated upon receipt of statements therefor as of the ~~Purchaser~~ Transfer Date. (c) All amounts which are subject to proration under the terms of this Agreement and which require adjustment after the Transfer Date shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than be settled within thirty (30) days ~~in advance~~ after the Transfer Date or, in the ~~ordinary course of business), then Purchaser shall be charged its portion of~~ event the information necessary for such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated adjustment is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to available within said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) day period, then within ten (10) business days ~~following Closing, at which time all prorations shall be deemed final and not~~ of receipt of information by either party necessary to settle the amounts subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closingproration. (d) In Within five (5) business days after the ~~event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing~~ Transfer Date, ~~then Purchaser~~ Assignee shall ~~be responsible~~ remit to ~~pay same subsequent~~ Tenant a cashiers check in an amount equal to any xxxxx cash (as compared to resident funds) maintained at the ~~Closing Date (but no such payment shall accrue to the benefit~~ Facility by Tenant as of the ~~Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)~~Transfer Date. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Lease Assignment and Operations Transfer Agreement (Emeritus Corp\wa\)

Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); ~~prepaid associations dues,~~ refundable security deposits and, if applicable under the laws of the State of Georgia, interest thereon (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; ~~management fees in the amount of 6% of prorated rents credited to Purchaser;~~ real and personal property ~~taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability~~taxes, ~~if any, for such items);~~ operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the ~~tenants~~ Tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to against the balance of the cash due at Closing. ~~Utilities~~If real estate tax bills for the year 1997 are not available, ~~including water, sewer, electric, and gas~~ real estate taxes for the year 1997 shall be prorated ~~at Closing~~ based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course 105% of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing1996 taxes. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations ~~described~~ will be final except as to delinquent rent referred to in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the ClosingParagraph 12.2 below. 13.2. ~~Rents which are delinquent as of~~ All basic rent paid following the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion by any tenant of the ~~Real~~ Property who is indebted under a lease for basic rent for any period prior to ~~the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to~~ and ~~until the day prior to~~ including the Closing Date, ~~provided that Seller shall not agree to reduce rents for any period of time~~ after ~~Closing in order to induce any tenants to pay delinquent rents. Seller shall not have~~ the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) payment to Purchaser at of all current basic rent, shall be deemed a "Post-Closing ~~a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller,~~ Receipt" until such time as all such indebtedness is paid in ~~place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:~~ full. Within ten (~~a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180~~10) days ~~subsequent to the date when the public telephone directory pertaining to~~ following each ~~Property is published subsequent to the~~ receipt by Purchaser of a Post-Closing ~~Date. During such period~~Receipt, Purchaser shall ~~have the right~~ pay such Post-Closing Receipt to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinSeller. Purchaser shall ~~not~~ use ~~the existing logos or trade name on stationery~~its best efforts to collect all amounts which, ~~business cards~~upon collection, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovewould constitute Post-Closing Receipts hereunder. ~~In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs~~ Within 120 days after ~~the date hereof but before~~ the Closing Date, Purchaser shall ~~have~~ deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to ~~place a listing and/or advertisement in such publication~~ conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's ~~sole cost~~ books and ~~expense. Such listing and/or advertisement may list~~ records to verify the ~~Purchaser's name~~ accuracy of the Post-Closing Receipts reconciliation statement and ~~telephone number.~~ upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller ~~may also place a listing and/or advertisement in such publication,~~ said additional Post-Closing Receipts and ~~in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of~~ the cost of ~~such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use~~ performing Seller's audit. Paragraph 12.2 of ~~such listings or advertising subsequent to~~ this Agreement shall survive the Closing ~~Date, then Purchaser shall be responsible to pay same subsequent to~~ and the ~~Closing Date (but no such payment shall accrue to the benefit~~ delivery and recording of the ~~Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)~~deed. (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale (Balcor Realty Investors 85 Series Iii)

Appears in 1 contract

Samples: Agreement of Purchase and Sale (American Industrial Properties Reit Inc)

Prorations. ~~13.1. Rents~~ (~~exclusive~~ a) At the Closing, all Taxes related to the Owned Real Property (and the Leased Real Property to the extent such Taxes are the responsibility of ~~delinquent rents~~the tenant under the relevant Lease) (“Real Estate Taxes”) shall be pro rated as follows: (i) with respect to Real Property located in Wisconsin, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a ~~"net" basis~~ calendar year basis, as of the Closing Date; and (~~i.e.~~ ii) with respect to Real Property located in Iowa, (A) Seller shall be responsible for the Real Estate Taxes billed in (or around) September 2009 and all prior Tax bills, and (B) the Real Estate Taxes billed in (or around) March 2010 shall be prorated and adjusted between the parties, based upon their respective ownership during the first six (6) months of 2009; and (b) Seller shall be responsible for all ~~tenants' liability~~special assessment installments related to the Owned Real Property (and the Leased Real Property to the extent such special assessment installments are the responsibility of the tenant under the relevant Lease), ~~if any, for such items); operating expenses~~ which are ~~reimbursable by the tenants for the period~~ billed (even if not yet due) on or prior to ~~the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on~~ the Closing Date, and ~~credited~~ Buyer shall pay all special assessment installments related to the ~~balance~~ Owned Real Property (and the Leased Real Property to the extent such special assessment installments are the responsibility of the ~~cash due at Closing. Utilities, including water, sewer, electric, and gas~~ tenant under the relevant Lease) first billed after the Closing Date. (c) Personal property Taxes allocable to the personal property to be purchased under this Agreement which are billed or are to be billed in 2009 shall be prorated ~~at Closing based~~ and adjusted between the parties, on ~~the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing~~a calendar year basis, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. . (d) All ~~costs associated with telephone directory listings~~ rent payments, common area maintenance (CAM) charges, utility bills and ~~any~~ other ~~prepaid advertisements~~ similar charges related to the Acquired Real Property shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) ~~Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent~~ All payroll Taxes and other similar Liabilities related to the ~~expiration date~~ Representatives of ~~this temporary license set forth above, then Purchaser~~ the Company Group shall also be ~~liable for and shall pay to~~ prorated as of the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysClosing. (f) ~~If Purchaser continues~~ With respect to ~~use said logos or trade names beyond the period allowed above for which a temporary license has~~ any items to be prorated, including, without limitation, Taxes, that have not been ~~granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws~~ billed as of the ~~state where~~ Closing, agreed upon estimates shall be used in prorations, and such ~~Property is located~~ estimates shall be deemed to ~~prevent such unauthorized use~~ be conclusive. (g) Notwithstanding any other provisions hereof, all amounts that are the responsibility of, or ~~to recover any damages authorized by such laws~~otherwise allocated to, Seller under this Section 2.13 shall reduce the Purchase Price at Closing either directly or as a reduction in the calculation of the Net Equity Amount.

Appears in 1 contract

Samples: Purchase Agreement (Miller Herman Inc)

Prorations. ~~13.1~~Seller and Purchaser agree to prepare a proration schedule of adjustments five (5) business days prior to Closing. ~~Rents (exclusive~~ For purposes of ~~delinquent rents~~calculating prorations, ~~but including prepaid rents); prepaid associations dues~~Purchaser shall be deemed to be in title to the Property, ~~refundable security deposits (~~and therefore entitled to the income therefrom and responsible for the expenses thereof, for the entire day upon which ~~will~~ the Closing occurs. All such prorations shall be ~~assigned to~~ made at Closing on the basis of the actual number of days of the year and ~~assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in~~ month that shall have elapsed as of the Closing Date. If post-Closing adjustments are required under this Article 7, the amount of 6% such prorations shall be adjusted in cash after Closing, as and when complete and accurate information becomes available. Seller and Purchaser agree to cooperate and use their good faith and diligent efforts to make such adjustments no later than two hundred and seventy (270) days after Closing with respect to taxes and assessments and no later than thirty (30) days after the Closing with respect to other prorated amounts, or as soon as is reasonably practicable if and to the extent that the required final proration information is not available within such period. Items of ~~prorated rents credited to Purchaser; real~~ income and ~~personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants~~ expense for the period prior to the Closing Date ~~less any amount previously paid by~~ will be for the ~~tenants shall be credited to Seller;~~ account of Seller and ~~other similar~~ items ~~shall be adjusted ratably as~~ of ~~11:59 p.m. on the Closing Date,~~ income and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor expense for the period to on and ~~including~~ after the ~~Closing~~Closing Date will be for the account of Purchaser, ~~and~~ all as determined by the ~~Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills~~accrual method of accounting, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts subject to the ~~Purchaser's address~~provisions hereof. Bills received after Closing that relate to expenses incurred, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned services performed or other amounts allocable to the ~~Purchaser at Closing. Assessments payable in installments which are due subsequent~~ period prior to the Closing Date shall be paid by ~~Purchaser~~Seller. ~~If the amount of any of the items to~~ Any amounts not so paid by Seller may be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants set off against amounts (if any) ~~shall be treated as a portion~~ otherwise due Seller hereunder. The obligations of the ~~real estate tax liability~~ parties pursuant to ~~be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements~~ this Section 7.1, including Sections 7.1.1 through 7.1.5, shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at survive the Closing and ~~to correct~~ shall not merge into any ~~errors made~~ documents of conveyance delivered at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Real Estate Contract (Industrial Property Trust Inc.)

Prorations. ~~13.1~~12.1. All Rents (exclusive of delinquent rents, but including prepaid rents)~~; prepaid associations dues~~, ~~refundable security deposits (which will~~ expenses, taxes, water and sewer rents, or similar charges of fees, are to be adjusted as of midnight of the day of Closing. Real and personal property taxes, general and special, are to be adjusted according to the certificate of taxes issued by the taxing authority, and Purchaser shall assume charges therefor accruing from and after Closing. 12.2. All contracts and agreements relative to the operation, servicing and/or maintenance of the Property to be assigned to ~~and assumed by~~ Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis or terminated (~~i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior~~ to the ~~Closing Date less any amount previously paid by~~ extent the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on term extends beyond the Closing Date) shall be ~~subject to post-closing adjustments~~ adjusted between the parties as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on of midnight of the day ~~which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions~~ of ~~the preceding sentence shall survive the~~ Closing. ~~13.2~~12.3. ~~Rents which are delinquent as of the Closing Date~~ Purchaser shall ~~not be prorated. Instead,~~ have no obligation to ~~the extent~~ collect any past-due rents except that Purchaser ~~is able~~ shall use commercially reasonable efforts to collect ~~said delinquencies~~delinquent rents and promptly reimburse Seller for such past-due rents when, ~~the~~ as and if collected,net of costs of collection. Monies received from delinquent tenants after Closing by Purchaser shall be ~~entitled~~ applied as follows: (1) first, pro rata to ~~receive~~ Purchaser and Seller for the month the Closing takes place; (2) second, to Purchaser in an amount equal to all rentals due from such ~~delinquent rent attributable~~ tenants accruing after Closing; (3) third, to ~~a tenant's occupancy~~ costs of ~~a portion of the Real Property for any period prior to the date of Closing~~collection; and (4) fourth, ~~free from any claim thereon by the Seller. Seller may use whatever lawful means are available~~ to Seller in an amount equal to ~~collect~~ any ~~delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any~~ remaining unpaid rental arrearages owed by such tenants to ~~pay delinquent rents.~~ Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. ~~13.3~~12.4. To At Closing, Seller shall deliver to Purchaser, or make appropriate adjustments for, all tenant security deposits and the ~~extent it is reasonably possible~~ like, together with statutory or contractual interest owed to tenants, together with a detailed statement of the security deposits and all such accrued interest held for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property account of ~~an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at~~ each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereintenant. Purchaser shall ~~not use~~ receipt for the ~~existing logos or trade name on stationery, business cards, contracts or other documents,~~ same and shall ~~not use the existing trade name in responding~~ indemnify, defend and save Seller harmless from and against any claims relating to ~~oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full~~ Purchaser's application or holding of such deposits and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in interest, which Seller ~~currently~~ has ~~a telephone directory listing and/or advertisement occurs~~ delivered or for which an adjustment has been made at Closing,from and after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone numberClosing. Seller ~~may also place a listing and/or advertisement in such publication~~shall indemnify, defend and ~~in the event that Seller decides~~ save Purchaser harmless from and against any claims relating to ~~place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost~~ Seller's application or holding of such ~~listing and/or advertisement attributable~~ deposits and interest prior to ~~the period after~~ Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale (Balcor Pension Investors Iv)

Prorations. ~~13.1~~12.1. Rents (exclusive of delinquent rents, but including prepaid rents); ~~prepaid associations dues,~~ refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of ~~6% of prorated rents credited to Purchaser~~5%; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the ~~tenants~~ Tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to against the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. ~~The Purchaser shall assume Seller's obligations under~~ If the ~~Seller's existing~~ amount of current real estate ~~tax consulting agreements with respect to~~ or personal property taxes is not then ascertainable, the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) adjustment thereof shall be ~~treated as a portion~~ on the basis of 105% of the ~~real estate~~ most recent ascertainable tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Datebill(s). All prorations ~~described~~ will be xxxal except as to delinquent rent referred to in Paragraph 12.2 below. 12.2. All rents collected by Purchaser shall first be applied to current rent due from the applicable tenant and then to any rent in arrears for said tenant at Closing ("Delinquent Rent"). Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Delinquent Rents hereunder to Seller. Seller retains the right to conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Delinquent Rents reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Delinquent Rents and the cost of performing Seller's audit. Paragraph 12.2 of this Agreement ~~(except prorations for real and personal property taxes which~~ shall ~~be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at~~ survive the Closing and ~~to correct any errors made at~~ the ~~Closing with respect to such prorations; provided, however, that such prorations shall be deemed final~~ delivery and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions recording of the ~~preceding sentence shall survive the Closing~~deed. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale (Balcor Equity Properties LTD-Viii)

Prorations. ~~13.1. Rents (exclusive of delinquent rents~~Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately preceding the Closing ~~Date~~Date (the “Closing Time”), the following (collectively, the “Proration Items”): real estate and personal property taxes and assessments for the year in which Closing occurs, periodic fees or assessments under declarations, reciprocal easement agreements or similar agreements to which the Property is subject, utility bills (except as hereinafter provided), amounts payable or paid under any Service Contracts assumed by Purchaser, collected Rentals (subject to the terms of Section 10.4(b) below) accrued interest under the Mortgage Loan and operating expenses payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period up to and including the ~~Closing~~Closing Time, and ~~the~~ Purchaser ~~shall pay the utility bills therefor~~ will be charged and credited for all ~~periods subsequent thereto~~of the Proration Items relating to the period after the Closing Time. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser Such preliminary estimated Closing prorations shall be ~~charged its portion of such payment at Closing. No proration shall~~ set forth on a preliminary closing statement to be ~~made for utility expenses that are separately metered to~~ prepared by Seller and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable submitted to Purchaser ~~and Seller. Seller~~ for Purchaser’s approval (which approval shall not be ~~reimbursed~~ unreasonably withheld, delayed or conditioned) at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent least two (2) Business Days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the ~~amount of any~~ actual amounts of the ~~items to be prorated is~~ Proration Items are not ~~then ascertainable~~known as of the Closing Time, the ~~adjustments thereof shall~~ prorations will be made at Closing on the basis of the ~~most recent ascertainable data~~best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. ~~The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect~~ No prorations will be made in relation to insurance premiums (except to the ~~Properties~~extent covered by the proration of Operating Expense Recoveries), ~~i.e., those agreements which Seller has entered into with firms who are entitled~~ and Seller’s insurance policies will not be assigned to ~~a commission based on services rendered~~ Purchaser. Final readings and ~~the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (~~final xxxxxxxx for utilities will be made if ~~any) shall be treated as a portion of the real estate tax liability to be pro-rated~~ possible as of the Closing ~~Date. All costs associated with telephone directory listings and~~ Time, in which event (that is, as to any ~~other prepaid advertisements shall be prorated~~ utility account, if such a final billing as of the Closing ~~Date so that Seller shall~~ Time is then available) no proration will be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to ~~such prorations~~utility bills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers (and if so requested in writing by Purchaser, Seller will provide reasonable and good faith assistance to Purchaser in establishing new utility accounts, at no cost or liability to Seller). A final reconciliation of Proration Items shall be made by Purchaser and Seller on or before the later of twenty (20) days after Closing and March 15, 2015 (the "Final Reconciliation Date"); ~~provided, however,~~ provided that such ~~prorations~~ reconciliation, as it relates to real estate taxes, shall be ~~deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is~~ made within thirty (30) days following ~~Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment~~the issuance of the tax bills for each Real Property. The provisions of ~~the preceding sentence shall~~ this Section 10.4 (excluding subsection (e) which is governed by Section 3.2 above), will survive the ~~Closing. 13.2. Rents which are delinquent as of~~ Closing until the ~~Closing~~ Final Reconciliation Date ~~shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive~~ (and such ~~delinquent rent attributable to a tenant's occupancy of a portion of the Real Property~~ period reasonably necessary thereafter for any ~~period prior~~ payment owing under this sentence to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publicationmade), and in the event ~~that Seller decides~~ any items subject to ~~place such~~ proration hereunder are discovered on or before the Final Reconciliation Date to be in error so as to result in a ~~listing and/or advertisement~~monetary adjustment of greater than $500, ~~Seller~~ the same shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed promptly prorated by the ~~Seller to said third party). (e) Purchaser's temporary license set forth~~ parties in ~~this paragraph shall expire on~~ accordance with the ~~date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date~~ terms of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysSection 10.4. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.

Appears in 1 contract

Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)

Common use of Prorations Clause in Contracts