Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing. (a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be. (b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date. (c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date. (d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below. (e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration. (f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing. (g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing. (h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP. (i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing. (j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable. 6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement. 6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 6 contracts
Sources: Contribution Agreement (Sun Communities Inc), Contribution Agreement (Sun Communities Inc), Contribution Agreement (Sun Communities Inc)
Adjustments and Prorations. 6.1 8.1 The following adjustments and prorations shall be made at the Closing between SCOLPSeller and Purchaser computed to, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall but not be an adjustment to including, the Units to be issued at ClosingClosing Date.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project on or prior to the Contribution Date (other than current taxes)Closing Date, and all special assessments levied on any portion of the Project prior to the Contribution Date, Closing Date shall be paid by Owner or Contributor prior to the Contribution DateSeller. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basisFurther, understanding that real estate all taxes in the State nature of Florida are payable rollback or similar taxes charged, assessed or levied based on the prior use or any change in arrears. Such proration use of the Land or Improvements shall be made on the basis obligation of the amount of Seller. All current real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes (the “Current Taxes”) levied against any portion of the Project and applicable with respect to the period after tax year in which the Contribution Date Closing occurs, which Current Taxes are payable in arrears, shall be prorated and adjusted between the parties on a calendar such that the Seller is responsible for that portion of the Current Taxes allocable to the period from the beginning of such tax year basis to the Closing Date, and shall be paid the Purchaser is responsible for that portion of the Current Taxes allocable to the period from the Closing Date through the end of the tax year. If the tax bills for the Current Taxes have not been issued by Contributor or SCOLPthe Closing Date, as Seller and Purchaser agree to use 105% of the case may beamount of the taxes for the year immediately preceding the Closing for the purpose of computing the prorations under this Section 8.1(a).
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Projectbills, and of all other day to day operating and other expenses (the “Expenses”) incurred with respect to the Project and OwnerProject, and relating to the period prior to the Contribution Closing Date, shall be paid by Owner Seller or Contributor on or prior if unpaid, credited to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment Purchaser at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating Expenses attributable to the period from and after and including the Contribution Date, Closing shall be paid the obligation of the Purchaser or to the extent prepaid by SCOLP Seller, credited to Contributor on the Contribution DateSeller at Closing.
(c) Charges under Project Contracts (as defined below) which are assigned to Purchaser at Purchaser's request shall be paid by Seller, to the extent attributable to the period prior to the Contribution Date Closing Date, and shall be paid by Owner or Contributor prior Purchaser, to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts extent attributable to the period from and after the Closing Date, and including the Contribution Date all charges due under Project Contracts not assigned to Purchaser shall be paid by SCOLP to Contributor on the Contribution DateSeller.
(d) All rental and other revenues collected by Owner the Seller up to the Contribution Closing Date which are allocable to the period prior to the Contribution Date, including without limit pass-through from and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition by Seller to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to ClosingPurchaser. To the extent Purchaser collects, within ninety (90) days after the Closing, any Rents rental or revenues allocable to the period prior to the Closing Date are Date, the Purchaser shall pay the same to Seller; provided, however, Purchaser is assuming no obligation whatsoever for the collection of such rentals or revenues and all rentals and revenues collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid subsequent to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall always, in the first instance, be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid applied first to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of most current rentals and revenues, if any, then due under the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions Tenant Leases or otherwise, and all amounts due for the payment of employment taxes with respect thereto, . Purchaser shall be paid by Owner on or prior have no obligation to the Contribution Date, or, if not paid, an amount equal remit to Seller any such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within delinquent rents collected later than ninety (90) days after the Closing.
(e) If any Tenant Lease provides for the rent payable by the tenant after the Closing Date to be less than the pro forma or budgeted rent for such home site as set forth on the Rent Roll, whether as a result of free rent, reduced rent or any other form of rent concessions(in each case, a “Rent Concession”), at Closing the Purchaser shall be entitled to a credit from the Seller in an amount equal to sum of all such rent concessions made to tenants attributable to the period after the Closing Date, provided that Purchaser did not consent or otherwise agree to such Rent Concession. If any Rent Concession extends for a period longer than twelve (12) months after the Closing Date, for the purpose of computing the credit to Purchaser hereunder applicable to such period beginning twelve (12) months after the Closing Date, the pro forma or budgeted rent set forth on the Rent shall be increased by five percent (5%).
(f) All security and other deposits held under the Tenant Leases, together with any interest accrued thereon (to the extent applicable law requires interest to be paid by the holder of such deposits), shall be paid by Seller to Purchaser in accordance with the laws of the State of Florida or Purchaser shall receive an appropriate credit on the closing statement.
(g) Any real estate transfer tax, intangible tax, documentary tax, sales tax, vehicle transfer tax and sales and use taxes levied on the transfer and conveyance of the Project, whether levied on the Land, Improvements, Personal Property or otherwise, shall be paid by Seller.
8.2 If within six (6) months after the Closing, either SCOLP Seller or Contributor Purchaser discovers any inaccuracies or errors in the pro rations prorations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2Closing, such party Seller and Purchaser shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations the said prorations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Closing Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 6 contracts
Sources: Sale Agreement (Sun Communities Inc), Sale Agreement (Sun Communities Inc), Agreement of Sale (Sun Communities Inc)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner SCOLP and Contributor. The adjustments and prorations will be made by a cash payment , and shall be computed to, but not be an adjustment to including, the Units to be issued at ClosingClosing Date.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the each Project on or prior to the Contribution Date (other than current taxes)Closing Date, and all special assessments levied on any portion of the Project prior to the Contribution Closing Date (to the extent of installments thereof due on or prior to the Closing Date, ) shall be paid by Owner Contributor on or Contributor prior to the Contribution Closing Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basisFurther, understanding that real estate all taxes in the State nature of Florida are payable rollback or similar taxes charged, assessed or levied based on the prior use or any change in arrears. Such proration use of the Land or Improvements prior to Closing shall be made on the basis obligation of the amount of Contributor. All real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes (the “Current Taxes”) levied against any portion of the each Project and applicable with respect to the period after applicable tax year in which the Contribution Date Closing occurs shall be prorated and adjusted between the parties such that Contributor is responsible for that portion of the Current Taxes allocable to the period from the beginning of such tax year to the Closing Date, and SCOLP is responsible for that portion of the Current Taxes allocable to the period commencing on a calendar the Closing Date through the end of the tax year. In addition, if Contributor or any Property Owner has paid any taxes or assessments for or in respect of tax years commencing after the Closing Date, then SCOLP shall be responsible for same and the amount thereof shall be credited to Contributor at Closing. If the tax bills for the Current Taxes have not been issued by the Closing Date, Contributor and SCOLP agree to prorate such Current Taxes on the basis of the taxes for the tax year basis immediately preceding the Closing for the purpose of computing the prorations under this Section 6.1(a), and to reprorate such Current Taxes at the request of either party promptly after the final bills for such Current Taxes are issued after Closing. The obligation to reprorate such Current Taxes will survive the Closing. Any refund or rebate of Current Taxes which is received by or payable to any Property Owner after the Closing shall be prorated between Contributor and SCOLP in the manner provided above promptly upon receipt. If there are any open appeals of real estate taxes or assessments for tax years prior to the tax year in which the Closing occurs, then Contributor shall be permitted to continue to prosecute and control such appeals at Contributor’s sole expense (and SCOLP covenants that it shall cause the applicable Property Owner, after Closing, to provide reasonable cooperation to Contributor to so prosecute and control such appeals); provided however, SCOLP have the right, at its expense, to participate in any proceeding which could reasonably be expected to affect any taxes required to be paid by any Property Owner on or after the date hereof and to consent to the settlement of any such proceeding and if the proceedings affect taxes and assessments for periods both before and after the Closing, then the parties will cooperate reasonably and the fees, costs and expenses of such proceeding shall be equitably allocated between Contributor and SCOLP. Further, if, after the Closing, any Property Owner receives or is entitled to receive any refund or rebate of taxes or assessments for periods prior to the tax year in which the Closing occurs, then upon receipt SCOLP shall pay the amount thereof directly to Contributor or SCOLP, as Contributor’s successors and assigns. The obligations of SCOLP under the case may bepreceding three sentences shall survive the Closing.
(b) The amount of all unpaid water and other utility bills for the each Project which are not directly billed to the tenants of the each Project, and all other operating and other expenses incurred with respect to the Project and Owner, and each Projects relating to the period prior to the Contribution Closing Date, shall be paid by Owner or Contributor on or prior to the Contribution Closing Date or, if not paid, as soon as possible after Closing following receipt of an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Dateinvoice therefor.
(c) Charges under Assumed Project Contracts (as defined in Section 7.1(f) below) attributable to the period prior to the Contribution Closing Date shall be paid by Owner or Contributor prior to the Contribution Closing Date, or, if not paid, the amount due shall be reserved in cash within the Owner credited to SCOLP as of the Contribution Closing Date. Prepaid All charges under the Non-Assumed Project Contracts (as defined in Section 7.1(f) below) shall be paid by Contributor, whether such charges are attributable to the period prior to the Closing Date or the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Closing Date.
(d) All rental prepaid rental, pass-through charges, assessments and other revenues with respect to the operation of the Property collected by Owner Contributor, the Holding Companies, or the Property Owners up to the Contribution Closing Date which are allocable to the period prior from and after the Closing Date shall be paid by Contributor to the Contribution DateSCOLP. Current resident rents, including without limit pass-through charges and assessments shall be prorated and adjusted as of the date of Closing based upon the actual number of days in the month of Closing with SCOLP being credited for rents, pass-through charges and assessments on chargesthe date of Closing. In the event any pass-through charges (such as real estate taxes) are passed through to residents in the current year are based on a prior year’s amount without reconciliation with the residents, the amount actually used for the pass-through charge in the current year is the amount which shall become a part of the disbursement from Owner to the Holding Company be prorated by Contributor and SCOLP under this paragraph (d) without any subsequent reconciliation between Contributor and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rentsSCOLP. All rental, pass-through charges, pass-on charges, water assessments and other periodic revenues actually collected by SCOLP attributable to rent due for such month of Closing and received by SCOLP within sixty (the “Rents”60) for the calendar month in which days following the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project)Date, shall be prorated between Contributor and SCOLP based on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such monthmonth each owned each Project. SCOLP shall be paid or shall receive a credit for Except as provided in the pro rata share of the collected Rents received for the Closing Month. In addition preceding paragraph, to the foregoingextent SCOLP collects, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date within one hundred eighty (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days 180) after the Closing DateClosing, first to the cost of collecting such paymentsany rental, then to the most recent charges due andpass-through charges, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay assessments or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents revenues allocable to the period prior to the Closing Date are collected after ClosingDate, they SCOLP shall remain pay the property of same to Contributor and SCOLP shall use its good faith efforts to collect all such rent, pass-through charges, assessments or revenues allocable to the Owner and/or SCOLPperiod prior to the Closing Date, and but SCOLP shall not be paid required to commence litigation or distributed institute evictions with respect to such tenants; provided, however, and except as otherwise set forth above, SCOLP is assuming no obligation whatsoever for the collection of such rentals, pass-through charges, assessments or revenues and all rentals, pass-through charges, assessments and revenues collected subsequent to the Contributor. The Owner Closing Date shall not distribute or assign always, in the first instance, be applied first to the Contributor most current rentals, pass-through charges, assessments and revenues, if any, then due under the Tenant Leases or otherwise. Further, Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rentsrent, pass-through charges or assessments from any person while they remain a tenant of a Project, nor shall Contributor institute any eviction or lockout proceedings against any residents to recover delinquent rents, pass-through charges or assessments. Any Contributor shall retain one hundred (100%) percent of the right to receive any past due rents with respect to residents who are no longer residents of the Projects. Following Closing, SCOLP shall assume any eviction actions which are on-going as of the date of Closing Date and the expense shall assume responsibility for payment of any legal fees associated with such eviction actions incurred on and after the Closing Date, and sums received by SCOLP as a result of such eviction actions shall first be applied to reimburse SCOLP and Contributor for legal fees incurred in connection with such actions and the balance of such amounts prorated between Contributor and SCOLP as provided above. Any pass-through charges or assessments that are paid by tenants at the Projects on an annual basis or other non-monthly basis shall be prorated based upon the actual number of days in the period in which the Closing occurs with SCOLP being credited for rents, pass-through charges and assessments on the date of Closing. Notwithstanding the foregoing, prior to Closing, in order to avoid the ongoing reconciliation described in this Section 6.1(d), SCOLP and Contributor shall use good faith efforts to mutually agree upon terms by which SCOLP will have the right to retain all delinquent rents and receivables at the Projects collected after Closing in exchange for an agreed upon credit to the Contributor at Closing.
(e) Any Tenant Lease executed after the Effective Date and prior to the Closing Date shall be the responsibility executed in compliance with any applicable provisions of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property Exhibit I of the Owner and shall not be paid to the Contributor or otherwise subject to prorationOmnibus Agreement.
(f) An amount equal to all expenses of the Project Projects which were paid prior to the Contribution Closing Date and for which Owner SCOLP will benefit after the Contribution Closing Date including, without limitation, pre-paid taxes and assessments (if applicable), annual license and permit fees and pre-paid amounts (if any) under the Assumed Project Contracts, shall be disbursed or credited to Contributor at the Closing, and an amount equal to all expenses of the Projects which were incurred prior to the Closing Date and are due or paid after the Closing Date shall be credited to SCOLP at the Closing and SCOLP shall cause all such expenses to be paid.
(g) All compensationThe credit to SCOLP, fringe benefits and other amounts due if any, payable in accordance with the employees of Owner or the manager of the Project for the period prior pre-closing operating covenants (attached to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes Omnibus Agreement) in connection with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at ClosingCapital Projects.
(h) All costs and expenses incurred by Owner, the Contributor or any Holding Company or Contributor Property Owner prior to the Contribution Closing Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, fees and the costs and expenses payable by Owner, Contributor or any Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor)Property Owner hereunder, shall be paid by Contributor and shall not be charged to, or the responsibility of any Holding Company or Property Owner or SCOLP.
(i) The amount of all escrows and reserves required under All interest accrued for the Mortgage Documents which are on deposit on Assumed Debt up to the Contribution Closing Date shall be paid by SCOLP to the Contributor Property Owners who are the borrowers under the Assumed Debt on or before the Contribution Date Closing Date, or, if not paid, an amount equal to the entire amount of such escrows and reserves accrued interest shall be credited to Contributor in connection with SCOLP as of the cash adjustment at ClosingClosing Date.
(j) In All escrows and reserve accounts under the event any rental discountsAssumed Debt and the Mortgage Documents which will remain in place after the Closing for the benefit of SCOLP, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reasonHolding Companies, and the same have not been fully satisfied Property Owners and shall be credited by SCOLP to Contributor at the Closing, SCOLP shall .
(k) Contributor will be entitled to a credit or payment at Closing in for any utility deposit, public improvement bond or similar refundable security posted for the amount benefit of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to any Project for which SCOLP receives the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payablebenefit after Closing.
6.2 On or prior to the Contribution Date, (l) Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from cause each Property Owner and each Holding Company to distribute to Contributor prior to Closing all cash on hand, cash equivalents and other investments and assets, other than the Projects and related Improvements, the Personal Property or other Acquired Assets described in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Omnibus Agreement.
6.3 If 6.2 If, within ninety one hundred eighty (90180) days after the Closing Closing, either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations prorations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.26.1, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The In such event, the parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve such issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations prorations and adjustments completed pursuant to Section 6.1 hereof shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Closing Date. Prorations Contributor and SCOLP further acknowledge and agree that if neither party has identified an inaccuracy or error in the prorations or adjustments completed pursuant to prorations are not subject to, or included withinSection 6.1 within such one hundred eighty (180) days, the Minimum Amount or Maximum Amount set forth obligation to complete a post-closing adjustment shall be deemed null and void and of no further force and effect; provided, however, that the 180-day period in this Section 7.3(d6.2 shall not apply to the reproration of Current Taxes under Section 6.1(a), which will be effected promptly after the issuance of the final tax bills for the Current Taxes.
Appears in 3 contracts
Sources: Membership Interest Purchase Agreement (Sun Communities Inc), Membership Interest Purchase Agreement (Sun Communities Inc), Contribution Agreement (Sun Communities Inc)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall Contributor computed to, but not be an adjustment to including, the Units to be issued at ClosingContribution Date.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part reserved in cash within the Owner as of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, Date shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received An amount equal to all security and other deposits described in the Rent Roll, together with any interest accrued thereon (to the extent applicable law requires interest to be paid by the holder of such deposits) shall be reserved in cash within the Owner attributable to the period after and including as of the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy SCOLP at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid reserved in cash at Closingwithin the Owner as of the Contribution Date.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, fees and the costs and expenses payable by Owner, Holding Company Owner or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by ContributorMembers), shall be paid by Contributor and shall not be charged to, or the responsibility of of, Owner, the Holding Company or SCOLP.
(i) The amount of all escrows and reserves required All interest accrued under the Mortgage Documents which are on deposit on Note through the Contribution Date, and all other fees and charges due or accrued under the Mortgage Note, Mortgage or with respect to the Loan as of the Contribution Date (including, without limitation, all assumption fees and expenses related thereto), shall be paid by SCOLP to the Contributor Owner on or before the Contribution Date Date, or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the entire amount of such discountsaccrued interest, incentives or obligations. In all events, all debts, obligations, charges, liabilities fees and liens with respect to the Project charges shall be fully paid and satisfied or credited or paid to SCOLP on reserved in cash within the Owner as of the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, costs and expenses and prorations payable by Owner or chargeable against the ▇▇▇▇▇▇ Entities Contributor hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations prorations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The In such event, the parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations prorations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 3 contracts
Sources: Master Contribution Agreement (Sun Communities Inc), Contribution Agreement (Sun Communities Inc), Contribution Agreement (Sun Communities Inc)
Adjustments and Prorations. 6.1 The following adjustments and prorations 5.1 Seller shall be made at entitled to all income produced from the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion operation of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date Property which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after and shall be responsible for all expenses allocable to that period; and Buyer shall be entitled to all income and responsible for all expenses allocable to the period beginning at 12:01 A.M. on the Closing Date. At Closing, they all items of income and expense with respect to the Property shall remain be prorated in accordance with the foregoing principles and the rules for the specific items set forth hereafter:
5.1.1 [Intentionally omitted.]
5.1.2 Real estate taxes, general, special and/or betterment assessments and personal property taxes shall be prorated for those taxes which are due and payable during the calendar or other fiscal tax year in which the Closing Date occurs (to the extent the tax bills for the calendar year in which Closing shall occur have not been issued as of Closing, then such proration shall involve a credit to Buyer for the daily rate of such taxes for the number of days of Seller’s ownership of the Owner and/or SCOLPProperty during such calendar year; to the extent Closing occurs after the applicable tax bills have been issued and have been paid, then such proration shall involve a credit to Seller for the daily rate of such taxes for the number of days of Buyer’s ownership of the Property during such calendar year). In the event that as of the Closing Date the actual tax bills for the tax year or years in question are not available and the amount of taxes to be prorated as aforesaid cannot be ascertained, then rates, millages and assessed valuation of the previous year, with known changes, shall be used; and after the Closing occurs and when the actual amount of taxes for the year or years in question shall be determinable, such taxes will be re-prorated between the parties to reflect the actual amount of such taxes. The parties acknowledge that, under its Lease, Wal-Mart is not obligated to reimburse the owner of the Property Wal-Mart’s pro rata share of such taxes but instead pay same directly to the taxing authority so the amount to be credited to Buyer hereunder shall be offset by the amount of taxes payable by Wal-Mart under its Lease.
5.1.3 Rentals and other payments (other than “percentage rent” and common area maintenance charges which are dealt with in Section 5.1.4 and Section 5.1.6) which are payable pursuant to Space Leases shall be prorated on a per diem basis as and when collected (subject to the provisions of Section 5.3). Buyer shall not be obligated to make any payment or give any credit to Seller on account of or by reason of any rental or other payments which are unpaid as of the Closing Date, but shall be required to turn over Seller’s share of the same within ten (10) days if, as and when received by Buyer after the Closing, provided that the first sums received from any tenant after Closing shall applied to then current rental and other payment obligations of such tenant under its Space Lease, with any remainder being applied to any delinquency existing as of Closing; this provision shall survive Closing.
5.1.4 Percentage rent, if any, payable under each Space Lease shall be prorated with respect to the lease year thereunder in which Closing occurs on a per diem basis as and when collected. Any percentage rent collected by Buyer including any percentage rent which is delinquent and pertaining to (i) an entire lease year or accounting period of a tenant under a Space Lease which ends on a date prior to the Closing Date, or (ii) that portion of a lease year or accounting period of such tenant covering a period prior to the Closing Date where such lease year or accounting period begins prior to the Closing Date and ends thereafter shall in both cases be paid to Seller within ten (10) days of receipt by Buyer; and if any tenant’s Space Lease provides for offsets or distributed deductions against percentage rent, then such offsets or deductions shall be prorated in the same manner as the percentage rent itself is prorated. This provision shall survive Closing.
5.1.5 Gas, water, electricity, heat, fuel, sewer and other utilities charges with respect to the Contributorperiod up until Closing shall be paid by Seller.
5.1.6 Common area maintenance expenses and charges shall be prorated. The Owner Seller shall be responsible for all common area expenses and charges incurred prior to the Closing Date, and Buyer shall be responsible for the same on and subsequent to the Closing Date. All common area expense payments made by each tenant and such charges paid under its Space Lease for the entire lease year during which the Closing occurs, including end-of-year adjustments, if any, shall be prorated between Seller and Buyer in the following manner: Not later than three (3) days prior to Closing, Seller shall deliver to Buyer, with regard to each Shopping Center tenant required to pay common area charges (“CAM Charges”) under its lease, a detailed computation showing all CAM Charge expenses incurred by Seller for the period from the beginning of each such tenant’s then current billing period for CAM Charges (e.g., calendar year, lease year, etc.) through the Closing Date, any CAM estimated payments or charges collected by Seller relating to such tenant (hereinafter “CAM Estimates”), and a ▇▇▇▇ for the tenant’s pro rata share of CAM Charges (i.e., for CAM charges through the Closing Date net of any such CAM Estimates held by Seller), together with all invoices and other evidence documenting such CAM Charges in detail required by such tenant’s lease. Buyer shall send any such bills to tenants promptly following Closing, in which event such tenant shall pay any amount shown due directly to Seller, and except as otherwise stated in Section 5.3.3 below Buyer shall have no responsibility to collect same. However, if any tenant rightfully refuses to pay such ▇▇▇▇ for CAM Charges due through the Closing Date, then Buyer shall resubmit such ▇▇▇▇ to any such tenant at the same time as Buyer next submits Buyer’s own ▇▇▇▇ to any such tenant; and any payment thereafter made by any such tenant on account of CAM Charges shall belong to and be forwarded within ten (10) days of its receipt to Seller until Seller’s ▇▇▇▇ is paid in full. Any CAM Estimates for any tenant shall be retained by Seller up to the amount of the pre-Closing CAM Charges payable by such tenant as evidenced by such bills and computations delivered by Seller at Closing, and Buyer shall receive a credit for any excess CAM Estimates collected by Seller.
5.1.7 All prepaid rentals, other prepaid payments (other than monthly real estate tax or CAM estimates or installments), security deposits, electric, gas, sewer and water deposits deposited with Seller by tenants, (including any accrued interest required under any Space Lease on all of the foregoing, unless Seller is entitled to retain the benefit thereof) under any Space Leases, license agreements or concession agreements relating to the Property, shall all belong to Buyer and all shall be assigned and delivered to Buyer at Closing, whereupon Seller shall be released from all liability with respect thereto. At Seller’s option, Buyer shall receive a credit against the cash portion of the Purchase Price in the amount of all such security deposits, and Seller may thereupon retain the same.
5.1.8 Buyer shall not distribute be responsible for any charges, salaries, vacation pay or assign fringe benefits of employees of Seller prior to or following the Contributor Closing and none of the foregoing shall be prorated.
5.2 All prorations and payments to be made under the foregoing provisions shall be made on the basis of a written statement or statements delivered to Buyer by Seller and approved by Buyer. In the event any prorations, apportionments or computation shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same, provided that it makes written demand on the one from who it is entitled to such adjustment within three hundred sixty-five (365) days after the erroneous payment or computation was made; this provision shall survive Closing.
5.3 All accounts receivable flowing from the Property shall be treated as follows:
5.3.1 In the event that there remains any unpaid base or minimum rent for a period prior to Closing, all payments of base or minimum rent and other charges due under any tenant Lease received from such tenant subsequent to Closing shall be applied first to sums owed Buyer before any part thereof (if any remaining) shall be paid to Seller on account of any delinquency owing as of Closing. In the event that there remains any unpaid tenant receivable other than base or minimum rent (including without limitation any tax, CAM, insurance or percentage rent payments) for any period prior to Closing, all payments received from any tenant in arrears (whether base or minimum rent or any other amount) shall be applied to any such sums owed Seller from such tenant before any part thereof shall be treated as belonging to Buyer.
5.3.2 In the event that any tenant of Seller or Buyer shall hereafter apply or shall have heretofore applied for relief under the provisions of any bankruptcy or similar laws for the protection of debtors, the provisions of Section 5.3.1 shall not apply, and the Contributor parties shall not have the right to seek collectioncollection of their respective accounts, through litigation or otherwisetheir entitlements being determined by the Closing and the other provisions of this Agreement. Neither party shall have the right to enter into any transactions that purport to compromise claims belonging to the other, of unpaid Rents. Any eviction actions which are on-going as of without the other party’s prior written consent.
5.3.3 If at the Closing Date and any tenants owe Seller any money, Seller shall have the expense of any legal fees associated with such eviction actions incurred on and after right, subsequent to the Closing Date shall be for a period of one (1) year, to collect such sums directly from the responsibility of Owner after Closing and tenants including bringing lawsuits against the tenants (at Seller’s sole expense) for such collection; provided, however, Seller agrees that any such legal action or collection shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property include any disturbance of the Owner and shall not be paid possession, use or occupancy of the tenants or any right to evict the tenants, whether pursuant to the Contributor lease provisions or otherwise subject to prorationotherwise.
(f) An amount equal to all expenses 5.4 The provisions of the Project which were paid prior to the Contribution Date and for which Owner this Article 5 will benefit after the Contribution Date shall be disbursed or credited to Contributor at the survive Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 2 contracts
Sources: Agreement of Sale, Agreement of Sale (Phillips Edison - ARC Shopping Center REIT Inc.)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes The Base Purchase Price shall be adjusted such that all revenues, expenses and personal property taxes which are a lien upon or levied against any portion of other Liabilities arising from the Project prior to Systems up until 12:01 a.m. on the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Closing Date, shall be paid by Owner or Contributor prior including subscriber and advertising revenues, franchise fees, pole and other rental charges payable with respect to the Contribution Date. Current cable television service, utility charges, real estate and personal property taxes and assessments levied against the Purchased Assets, property and equipment rentals, applicable copyright or other fees, sales and service charges, taxes (except for taxes arising from the transfer of the Purchased Assets hereunder which are covered by Section 11.1(b)), and similar prepaid and deferred items, shall be prorated at between Purchaser and Seller in accordance with the principle that Seller shall be responsible for all expenses, costs and Liabilities and entitled to all revenues allocable to the conduct of the Business for the period prior to the Closing effective as Date, and Purchaser shall be responsible for all expenses, costs and obligations and entitled to all revenues allocable to the conduct of the Business on the Closing Date on a calendar year basisand for the period thereafter, understanding that real estate taxes in the State all of Florida are payable in arrears. Such proration which shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may bedetermined in accordance with GAAP.
(b) The amount of all unpaid water and other utility bills for At Closing, the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, Base Purchase Price shall be paid increased by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part (a) 100% of the cash adjustment at Closing. The face amount of all prepaid water customer Accounts Receivable that are outstanding on the Closing Date and other utility bills have been outstanding for 30 or less from the Projectfirst day of the period to which any outstanding ▇▇▇▇ relates, (b) 95% of the face amount of all customer Accounts Receivable that are outstanding on the Closing Date and have been outstanding more than 30 days but less than 60 days from the first day of the period to which any outstanding ▇▇▇▇ relates, (c) 0% for all customer Accounts Receivable that are outstanding on the Closing Date and have been outstanding more than 60 days from the first day of the period to which any outstanding ▇▇▇▇ relates, and (d) 100% of the face amount of all other operating Accounts Receivable related to advertising services and other expenses time provided by Seller prior to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution DateClosing.
(c) Charges under Project Contracts (At Closing, the Base Purchase Price shall be increased by an amount equal to 100% of the face amount of all payments and sums deposited or advanced by Seller to a landlord, utility, Governmental Body or any other party as defined below) attributable a security deposit or in exchange for initiation of a service and which will inure to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as benefit of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution DatePurchaser.
(d) All rental and other revenues collected At Closing, the Base Purchase Price shall be reduced by Owner up an amount equal to the Contribution Date which are allocable to the period (i) any customer advance payments (i.e., customer payments received by Seller prior to the Contribution Closing but relating to service to be provided by Purchaser after the Closing) and deposits (including any interest owing thereon), (ii) except as set forth in Section 3.4(c), above, any other advance payments (e.g., advertising payments received by Seller prior to the Closing but relating to service to be provided by Purchaser after the Closing) and (iii) all accrued expenses and trade accounts payable to the extent arising out of the operations of the Business prior to the Closing that are outstanding as of 12:01 a.m. on the Closing Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 belowprovided that such Liabilities are assumed by Purchaser.
(e) Prepaid revenue received by the Owner attributable At least five (5) Business Days prior to the period after and including Closing Date, Seller will deliver to Purchaser a report with respect to the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues Systems (the “RentsPreliminary Report”), showing in detail the preliminary estimate of the adjustments referred to in Section 3.4(a)-(e) for the calendar month in which the Closing Date occurs (the “Closing MonthPurchase Price Adjustments”), and Rents not delinquent more than thirty days calculated in accordance with such Section as of the Closing Date (for those residents which remain in occupancy at or as of any other date(s) agreed to by the Projectparties), shall be prorated on an accrual basistogether with any documents substantiating the determination of the Purchase Price Adjustments proposed in the Preliminary Report. SCOLP shall either pay The Preliminary Report will include a Schedule setting forth advance payments and deposits made to or by Seller, as well as Accounts Receivable information relating to the Contributor or provide the Contributor with a credit for Systems (x) all unpaid Rents from tenants who are not delinquent more than thirty days showing sums due and their respective aging as of the Closing Date (for those residents which remain Date). The estimated Purchase Price Adjustments shown in occupancy the Preliminary Report will be reflected as adjustments to the Base Purchase Price payable at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition pursuant to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such RentsSection 3.4. In the event Purchaser objects to the Seller’s calculation of any Purchase Price Adjustment as set forth in the Preliminary Report, Purchaser shall deliver to the Seller at least two (2) Business Days prior to the Closing a written statement in reasonable detail describing any discrepancies believed to exist (“Purchaser Objection Notice”). Purchaser and Seller shall use their commercially reasonable efforts to resolve any of Purchaser’s objections to the Preliminary Report as described in Purchaser’s Objection Notice, and Seller shall make such revisions to the Preliminary Report as mutually agreed between Seller and Purchaser, and, if any changes are made, shall deliver a copy of such revised Preliminary Report to Purchaser no later than one (1) Business Day prior to the Closing. With respect to any of Purchaser’s objections that are not resolved before the Closing Date, the parties are unable to agreeshall proceed as follows: (i) if the aggregate amount of Purchaser’s unresolved objections is $100,000 or less, the Owner Closing shall apply any payments received during proceed with Seller’s estimate of such disputed amounts, and (ii) if the period aggregate of Purchaser’s unresolved objections are greater than $100,000, then the mid-point between the Closing Date aggregate of Purchaser’s unresolved objections and Seller’s estimate of such disputed amounts shall be used for purposes of proceeding to Closing. The amount used pursuant to subclause (i) or (ii) of this Section 3.4(e) shall be referred to as the date which is ninety “Estimated Adjustments Amount.”
(f) Within sixty (60) days after the Closing Date, first Purchaser shall deliver to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with Seller a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens report with respect to the Project Systems (the “Final Report”), showing in detail its determination of the Purchase Price Adjustments, together with any documents substantiating its calculation of the adjustments proposed in the Final Report. If Seller shall conclude that the Final Report does not accurately reflect the adjustments and prorations to be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior made to the Contribution DatePurchase Price in accordance with this Section 3.4, Contributor Seller shall, within thirty (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (9030) days after its receipt of the Closing either SCOLP Final Report, provide to Purchaser a written statement in reasonable detail describing any discrepancies believed to exist. Purchaser and Seller shall use good faith efforts to jointly resolve the discrepancies within fifteen (15) days of Purchaser’s receipt of Seller’s written statement of discrepancies, which resolution, if achieved, shall be binding upon all parties to this Agreement and not subject to dispute or Contributor discovers judicial review. If Purchaser and Seller cannot resolve the discrepancies to their mutual satisfaction within such 15-day period, Purchaser and Seller shall, within the following ten (10) days, shall jointly designate a nationally recognized independent accounting firm which is mutually agreeable to, and independent of each of, the parties (the “Independent Accountants”) to review the Final Report together with Seller’s discrepancy statement and any inaccuracies or errors in the pro rations or other relevant documents. The Independent Accountants shall report their conclusions as to adjustments done at Closing pursuant to Sections 6.1 and/or 6.2this Section 3.4 which shall be conclusive on all parties to this Agreement and not subject to dispute or judicial review absent clerical errors or fraud. If, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the after adjustment as appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and amount of the aforesaid adjustments done paid or credited at Closing pursuant the Closing, Purchaser or Seller is determined to Section 6.1owe an amount to the other, the appropriate party shall pay such amount thereof to the other, within three (3) Business Days after receipt of such determination. After The cost of retaining the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments Independent Accountants shall be in accordance with the terms of this Agreement, split equally between Purchaser and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)Seller.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Northland Cable Properties Eight Limited Partnership)
Adjustments and Prorations. 6.1 The following adjustments matters and prorations items shall be made at apportioned between the Closing between SCOLPparties based on actual daily amounts or, Owner and Contributor. The adjustments and prorations will be made by where appropriate, credited in total to a cash payment and shall not be an adjustment to particular party, as of the Units to be issued at Closing.Cut-off Time as provided below:
(a) To the extent possible, trade accounts payable (including amounts due under Hotel Contracts) shall be identified as of the Cut-off Time and paid in full at the Closing by Seller. Seller shall be and remain responsible for the full payment of any and all other trade accounts payable as of the Cut-off Time.
(b) Real estate taxes and personal property taxes which are a lien upon or levied against any portion taxes, assessments, water and sewer rents, rates and charges, vault charges, canopy permit fees, and other municipal permit fees and assessments (collectively, the “Property Taxes”) shall be prorated as of the Project prior to the Contribution Date Cut-off Time.
(c) Fees paid or payable in connection with transfer of Permits (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments Excluded Permits) shall be prorated at the Closing effective as of the Cut-off Time.
(d) Unless the Management Agreement is terminated on or before the Closing Date on a Date, all payments due under the Management Agreement shall be prorated as of the Cut-off Time. Without limitation of the foregoing, any incentive fees due and payable under the Management Agreement for the calendar year basis, understanding that real estate taxes in which Closing occurs shall be prorated between Purchaser and Seller in the State same proportion as gross revenues accrue under the Management Agreement prior to and after the Cut-off Time. As an example only, if for the calendar year in which Closing occurs 75% of Florida are payable in arrears. Such proration the gross revenues have accrued under the Management Agreement as of the Cut-off Time, Seller shall be made responsible for 75% of the incentive fees and Purchaser shall be responsible for 25% of the incentive fees for such calendar year.
(e) All payments due under the Daily Grill Management Agreement shall be prorated as of the Cut-off Time. Without limitation of the foregoing: (i) any incentive fees due and payable under the Daily Grill Management Agreement for the calendar year in which Closing occurs shall be prorated between Purchaser and Seller in the same proportion as gross revenues accrue under the Daily Grill Management Agreement prior to and after the Cut-off Time; and (ii) in the event the Daily Grill Manager makes the payment described in Section 5 of the Daily Grill Management Agreement, such payment shall be solely for the benefit of Purchaser.
(f) All payments due under the Parking Services Agreement shall be prorated as of the Cut-off Time. Without limitation of the foregoing, any incentive fees due and payable under the Parking Services Agreement for the calendar year in which Closing occurs shall be prorated between Purchaser and Seller in the same proportion as gross revenues accrue under the Parking Services Agreement prior to and after the Cut-off Time.
(g) Purchaser shall receive a credit for: (1) Deposits, if any, under Bookings for Hotel facilities, (2) a percentage of any outstanding gift certificates, which percentage shall be based upon the amount, age and historic redemption rate of gift certificates at the Hotel, and (3) commissions due to credit and referral organizations, to the extent applicable after the Closing Date. Seller shall receive a credit for coin machine, telephone, washroom, and checkroom income arising before the Cut-off Time.
(h) Gas, electricity and other utility charges shall be apportioned at Closing on the basis of the amount of real estate and personal property taxes for the current year if and most recent meter reading occurring prior to the extent that the taxing authorities have issued statements therefor, Closing (but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable subject to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, later readjustment as the case may beset forth below).
(bi) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
Non-delinquent operational and/or occupancy taxes (c) Charges under Project Contracts (as defined below) unless amounts attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed directly by Seller to the Contributor. The Owner applicable taxing authority) shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going be prorated as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at ClosingCut-off Time.
(j) In Telephone and telex contracts and contracts for the event supply of heat, steam, electric power, gas, lighting and any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any utility service shall be prorated as of the occupants at the Project Cut-off Time, with Seller receiving a credit for each deposit, if any, made by Seller as security under any reason, and such public service contracts if the same have not been fully satisfied by Closingis transferable and provided such deposit remains on deposit for the benefit of Purchaser. Where possible, SCOLP cut-off readings will be secured for all utilities on the Closing Date.
(k) Any amounts prepaid or payable under any Hotel Contracts and Space Leases, if any, shall be entitled prorated as of the Cut-Off Time. All security deposits shall be transferred to Purchaser and all obligations with respect to such security deposits shall be assumed by Purchaser and Seller shall receive a credit or payment at Closing in the amount of such discountssecurity deposits. To the extent applicable, incentives any percentage rent under a Space Lease that cannot be determined as of the Cut-Off Time shall be subject to a true up at the end of the year.
(l) Percentage rent (i.e., that portion of the rent payable to landlord by tenants under the Space Leases which is a percentage of the amount of sales or obligations. In all eventsof the dollar amount of sales), all debtsif any, obligations, charges, liabilities and liens payable under each Space Lease shall be prorated with respect to the Project year thereunder in which Closing occurs on a per diem basis. If the actual amounts to be prorated are not known as of Closing, the prorations shall be fully paid and satisfied or credited or paid to SCOLP made on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all basis of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunderbest evidence then available. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within Within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail end of the appropriate calculation. The year in which Closing occurs, Purchaser and Seller shall reconcile percentage rent for such year, and upon such reconciliation, the parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)make an adjusting payment between themselves as appropriate.
Appears in 2 contracts
Sources: Agreement for Sale and Purchase of Hotel, Agreement for Sale and Purchase of Hotel (Strategic Hotels & Resorts, Inc)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current 10.1 All taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney real estate taxes and other professional feespersonal property taxes, the Acquisition Loancollected rents, charges for utilities, including water, sewer, and the fuel oil, and for utility services, maintenance services, maintenance and service contracts, all operating costs and expenses payable by Ownerexpenses, Holding Company or Contributor hereunder and all other income, costs, and charges of every kind which in any manner relate to the operation of the Property (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), but not including insurance premiums) shall be paid prorated to the Date of Closing, except that if Seller does not receive the Purchase Price (by Contributor and receipt of wired funds or by receipt in hand of an official bank cashier's check) by noon, E.S.T., on the Date of Closing, all prorations shall not be charged tomade as of the following business day. If the amount of said taxes, assessments, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit rents is not known on the Contribution Date of Closing, they shall be paid by SCOLP to the Contributor apportioned on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any basis of the occupants at amounts for the Project for any reasonpreceding year, with a reapportionment as soon as the new amounts can be ascertained. If such taxes and the same have not been fully satisfied assessments shall thereafter be reduced by Closingabatement, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discountsabatement, incentives less the reasonable cost of obtaining the same, shall be apportioned between the parties, provided that neither party shall be obligated to institute or obligationsprosecute proceedings for an abatement unless otherwise agreed. In all eventsBuyer shall be responsible for the payment of any assessments or notice of assessments made after the date of execution hereof for any public improvement, all debts, obligations, charges, liabilities and liens with provided Buyer takes title hereunder. With respect to security deposits, if any, made by tenants at the Project Property and actually received in hand by Seller, Buyer shall receive credit therefor. Any deposits on utilities paid by Seller shall be fully paid and satisfied returned to Seller. The foregoing provisions of this Section 10.1 shall not apply to any taxes, assessments, or credited other payments which are directly payable by tenants under their leases or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior reimbursable by such tenants to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all owner of the cash and cash equivalent assets held by Owner Property, as of landlord, under their leases. On the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this AgreementClosing, Seller shall deliver to Buyer all inventories of supplies on hand at the Property owned by Seller, if any, at no additional cost to Buyer.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Hancock John Realty Income Fund Ii Limited Partnership), Purchase and Sale Agreement (Hancock John Realty Income Fund LTD Partnership)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current All taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney real estate taxes and personal property taxes, collected rents, charges for utilities, including water, sewer, and fuel oil, and for utility services, maintenance services, maintenance and service contracts, all operating costs and expenses, and all other professional feesincome, costs, and charges of every kind which in any manner relate to the Acquisition Loanoperation of the Premises (but not including insurance premiums) shall be prorated to the Date of Closing, except that if Seller does not receive the Purchase Price (by receipt of wired funds or by receipt in hand of an official bank cashier's check) by 1 o'clock P.M., Boston time on the Date of Closing, all prorations shall be made as of the following business day. Rents shall be prorated on an as-collected basis, with first rents collected after the Date of Closing credited toward current rent, if owed, and the costs and expenses payable balance to delinquencies. The Buyer shall receive credit for any post-closing unamortized rental concessions granted by OwnerSeller prior to the date of this Agreement. Buyer shall use reasonable efforts to assist the Seller in collecting delinquent rent, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and but shall not be charged torequired to file an action for the delinquency. Buyer shall receive a credit for all security deposits set forth on Exhibit B. If the amount of said taxes, assessments, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit rents is not known on the Contribution Date of Closing, they shall be paid by SCOLP to the Contributor apportioned on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any basis of the occupants at amounts for the Project for any reasonpreceding year, with a reapportionment as soon as the new amounts can be ascertained. If such taxes and the same have not been fully satisfied assessments shall thereafter be reduced by Closingabatement, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discountsabatement, incentives less the reasonable cost of obtaining the same, shall be apportioned between the parties, provided that neither party shall be obligated to institute or obligationsprosecute proceedings for an abatement unless otherwise agreed. In all eventsBuyer shall be responsible for the payment of any assessments or notice of assessments made after the date of execution hereof for any public improvement, all debtsprovided Buyer takes title hereunder. Any deposits on utilities paid by Seller shall be returned to Seller. The foregoing provisions of this section shall not apply to any taxes, obligationsassessments, charges, liabilities and liens with respect or other payments which are directly payable by tenants under their leases or reimbursable by such tenants to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all owner of the cash and cash equivalent assets held by Owner Premises, as of landlord, under their leases. On the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this AgreementClosing, Seller shall deliver to Buyer all inventories of supplies on hand at the Premises owned by Seller, if any, at no additional cost to Buyer.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Arden Realty Inc), Purchase and Sale Agreement (Arden Realty Inc)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment In addition to the Units Purchase Price payable pursuant to Article 3 of this Agreement and the increases, decreases and adjustments to the Cash Portion of the Purchase Price provided for elsewhere in this Agreement, Purchaser and Seller shall, on an accrual basis, also make the adjustments thereto provided for in this Article 13, which (except as otherwise expressly provided) are to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred apportioned with respect to the Project and Owner, and relating to Property as of the Cut-off Time (such that the period prior to preceding the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Closing Date shall be paid by Owner or Contributor prior to for the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as account of the Contribution Date. Prepaid charges under Project Contracts attributable to Seller and the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be for the responsibility account of Owner after Purchaser) and, to the extent possible, settled at Closing:
(a) HOTEL REVENUES AND RECEIVABLES. All Hotel Revenues and the Receivables shall be prorated as of the Cut-off Time; provided, however, that Hotel Revenues and the Receivables with respect to Hotel Revenues arising from the letting of Hotel guest rooms for the night immediately preceding the Closing Date shall be shared equally by Seller and Purchaser. Purchaser shall not be charged obligated to Contributorpay Seller for any of the Receivables. Sums received Following the Closing, Seller shall have the right to collect the Receivables. Purchaser shall have no obligation to pursue collection of the Receivables, but, if Purchaser should receive any payment on account of such litigation shall also remain the property any of the Owner and Receivables at any time following the Closing, Purchaser shall not be paid promptly remit such payment to Seller. If Seller should receive any payment on account of any Hotel Revenue relating to periods of time after the Closing, Seller shall promptly remit such payment to Purchaser. Purchaser will, subject to the Contributor provisions of Section 13.1(b) below, honor, for its account, the terms and rates of all the Bookings entered into by Seller or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid Manager prior to the Contribution Date and Closing Date, but confirmed for which Owner will benefit periods of time after the Contribution Closing Date. Any down payments on such confirmed Bookings and other advance payments made with respect to Bookings for dates on or after the Closing Date shall will be disbursed or credited to Contributor Purchaser at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 2 contracts
Sources: Agreement of Sale and Purchase (Host Funding Inc), Agreement of Sale and Purchase (Host Funding Inc)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLPSCOLP and the Holding Companies, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall be computed to, but not be an adjustment to including, the Units to be issued at ClosingClosing Date.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the each Project on or prior to the Contribution Date (other than current taxes)Closing Date, and all special assessments levied on any portion of the Project prior to the Contribution Closing Date (to the extent of installments thereof due on or prior to the Closing Date, ) shall be paid by Owner the Holding Companies on or Contributor prior to the Contribution Closing Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basisFurther, understanding that real estate all taxes in the State nature of Florida are payable rollback or similar taxes charged, assessed or levied based on the prior use or any change in arrears. Such proration use of the Land or Improvements prior to Closing shall be made on the basis obligation of the amount of Holding Companies. All real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes (the “Current Taxes”) levied against any portion of the each Project and applicable with respect to the period after applicable tax year in which the Contribution Date Closing occurs shall be prorated and adjusted between the parties such that the Holding Companies are responsible for that portion of the Current Taxes allocable to the period from the beginning of such tax year to the Closing Date, and SCOLP is responsible for that portion of the Current Taxes allocable to the period commencing on a calendar the Closing Date through the end of the tax year. In addition, if the Holding Companies or any Property Owner has paid any taxes or assessments for or in respect of tax years commencing after the Closing Date, then SCOLP shall be responsible for same and the amount thereof shall be credited to the Holding Companies at Closing. If the tax bills for the Current Taxes have not been issued by the Closing Date, Contributor and SCOLP agree to prorate such Current Taxes on the basis of the taxes for the tax year basis immediately preceding the Closing for the purpose of computing the prorations under this Section 6.1(a), and to reprorate such Current Taxes at the request of either party promptly after the final bills for such Current Taxes are issued after Closing. The obligation to reprorate such Current Taxes will survive the Closing. Any refund or rebate of Current Taxes which is received by or payable to any Property Owner after the Closing shall be prorated between the Holding Companies and SCOLP in the manner provided above promptly upon receipt. If there are any open appeals of real estate taxes or assessments for tax years prior to the tax year in which the Closing occurs, then the Holding Companies shall be permitted to continue to prosecute and control such appeals at the Holding Companies’ sole expense (and SCOLP covenants that it shall cause the applicable Property Owner, after Closing, to provide reasonable cooperation to Contributor or the Holding Companies to so prosecute and control such appeals); provided however, SCOLP have the right, at its expense, to participate in any proceeding which could reasonably be expected to affect any taxes required to be paid by Contributor any Property Owner on or after the date hereof and to consent to the settlement of any such proceeding and if the proceedings affect taxes and assessments for periods both before and after the Closing, then the parties will cooperate reasonably and the fees, costs and expenses of such proceeding shall be equitably allocated between the Holding Companies and SCOLP. Further, as if, after the case may beClosing, any Property Owner receives or is entitled to receive any refund or rebate of taxes or assessments for periods prior to the tax year in which the Closing occurs, then upon receipt SCOLP shall pay the amount thereof directly to the Holding Companies or the Holding Companies’ successors and assigns. The obligations of SCOLP under the preceding three sentences shall survive the Closing.
(b) The amount of all unpaid water and other utility bills for the each Project which are not directly billed to the tenants of the each Project, and all other operating and other expenses incurred with respect to the Project and Owner, and each Projects relating to the period prior to the Contribution Closing Date, shall be paid by Owner or Contributor the Holding Companies on or prior to the Contribution Closing Date or, if not paid, as soon as possible after Closing following receipt of an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Dateinvoice therefor.
(c) Charges under Assumed Project Contracts (as defined in Section 7.1(f) below) attributable to the period prior to the Contribution Closing Date shall be paid by Owner or Contributor the Holding Companies prior to the Contribution Closing Date, or, if not paid, the amount due shall be reserved in cash within the Owner credited to SCOLP as of the Contribution Closing Date. Prepaid All charges under the Non-Assumed Project Contracts (as defined in Section 7.1(f) below) shall be paid by the Holding Companies, whether such charges are attributable to the period prior to the Closing Date or the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Closing Date.
(d) All rental prepaid rental, pass-through charges, assessments and other revenues with respect to the operation of the Property collected by Owner Contributor, the Holding Companies, or the Property Owners up to the Contribution Closing Date which are allocable to the period prior from and after the Closing Date shall be paid by the Holding Companies to the Contribution DateSCOLP. Current resident rents, including without limit pass-through charges and assessments shall be prorated and adjusted as of the date of Closing based upon the actual number of days in the month of Closing with SCOLP being credited for rents, pass-through charges and assessments on chargesthe date of Closing. In the event any pass-through charges (such as real estate taxes) are passed through to residents in the current year are based on a prior year’s amount without reconciliation with the residents, the amount actually used for the pass-through charge in the current year is the amount which shall become a part of the disbursement from Owner to be prorated by the Holding Company Companies and SCOLP under this paragraph (and then from d) without any subsequent reconciliation between the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after Companies and including the Contribution Date including, without limit, tenant rentsSCOLP. All rental, pass-through charges, pass-on charges, water assessments and other periodic revenues actually collected by SCOLP attributable to rent due for such month of Closing and received by SCOLP within sixty (the “Rents”60) for the calendar month in which days following the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project)Date, shall be prorated between the Holding Companies and SCOLP based on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such monthmonth each owned each Project. SCOLP shall be paid or shall receive a credit for Except as provided in the pro rata share of the collected Rents received for the Closing Month. In addition preceding paragraph, to the foregoingextent SCOLP collects, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date within one hundred eighty (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety 180) days after the Closing DateClosing, first to the cost of collecting such paymentsany rental, then to the most recent charges due andpass-through charges, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay assessments or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents revenues allocable to the period prior to the Closing Date are collected after ClosingDate, they SCOLP shall remain pay the property of same to the Owner and/or SCOLPapplicable Holding Company and SCOLP shall use its good faith efforts to collect all such rent, and pass-through charges, assessments or revenues allocable to the period prior to the Closing Date, but SCOLP shall not be paid required to commence litigation or distributed institute evictions with respect to such tenants; provided, however, and except as otherwise set forth above, SCOLP is assuming no obligation whatsoever for the collection of such rentals, pass-through charges, assessments or revenues and all rentals, pass-through charges, assessments and revenues collected subsequent to the Contributor. The Owner Closing Date shall not distribute or assign always, in the first instance, be applied first to the most current rentals, pass-through charges, assessments and revenues, if any, then due under the Tenant Leases or otherwise. Further, Contributor and the Contributor Holding Companies shall not have the right to seek collection, through litigation or otherwise, of unpaid Rentsrent, pass-through charges or assessments from any person while they remain a tenant of a Project, nor shall Contributor institute any eviction or lockout proceedings against any residents to recover delinquent rents, pass-through charges or assessments. Any Contributor shall retain one hundred (100%) percent of the right to receive any past due rents with respect to residents who are no longer residents of the Projects. Following Closing, SCOLP shall assume any eviction actions which are on-going as of the date of Closing Date and the expense shall assume responsibility for payment of any legal fees associated with such eviction actions incurred on and after the Closing Date, and sums received by SCOLP as a result of such eviction actions shall first be applied to reimburse SCOLP and the Holding Companies for legal fees incurred in connection with such actions and the balance of such amounts prorated between the Holding Companies and SCOLP as provided above. Any pass-through charges or assessments that are paid by tenants at the Projects on an annual basis or other non-monthly basis shall be prorated based upon the actual number of days in the period in which the Closing occurs with SCOLP being credited for rents, pass-through charges and assessments on the date of Closing. Notwithstanding the foregoing, prior to Closing, in order to avoid the ongoing reconciliation described in this Section 6.1(d), SCOLP and Contributor shall use good faith efforts to mutually agree upon terms by which SCOLP will have the right to retain all delinquent rents and receivables at the Projects collected after Closing in exchange for an agreed upon credit to the Holding Companies at Closing.
(e) Any Tenant Lease executed after the Effective Date and prior to the Closing Date shall be the responsibility executed in compliance with any applicable provisions of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property Exhibit I of the Owner and shall not be paid to the Contributor or otherwise subject to prorationOmnibus Agreement.
(f) An amount equal to all expenses of the Project Projects which were paid prior to the Contribution Closing Date and for which Owner SCOLP will benefit after the Contribution Closing Date including, without limitation, pre-paid taxes and assessments (if applicable), annual license and permit fees and pre-paid amounts (if any) under the Assumed Project Contracts, shall be disbursed or credited to Contributor the Holding Companies at the Closing, and an amount equal to all expenses of the Projects which were incurred prior to the Closing Date and are due or paid after the Closing Date shall be credited to SCOLP at the Closing and SCOLP shall cause all such expenses to be paid.
(g) All compensationThe credit, fringe benefits and other amounts due if any, payable in accordance with the employees of Owner or the manager of the Project for the period prior pre-closing operating covenants (attached to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes Omnibus Agreement) in connection with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at ClosingCapital Projects.
(h) All costs and expenses incurred by Owner, the Contributor or any Holding Company or Contributor Property Owner prior to the Contribution Closing Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, fees and the costs and expenses payable by Owner, Contributor or any Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor)Property Owner hereunder, shall be paid by Contributor or the Holding Companies and shall not be charged to, or the responsibility of any Property Owner or SCOLP.
(i) The amount of all escrows and reserves required under All interest accrued for the Mortgage Documents which are on deposit on Assumed Debt up to the Contribution Closing Date shall be paid by SCOLP to the Contributor Property Owners who are the borrowers under the Assumed Debt on or before the Contribution Date Closing Date, or, if not paid, an amount equal to the entire amount of such escrows and reserves accrued interest shall be credited to Contributor in connection with SCOLP as of the cash adjustment at ClosingClosing Date.
(j) In All escrows and reserve accounts under the event any rental discountsAssumed Debt and the Mortgage Documents which will remain in place after the Closing for the benefit of SCOLP, leasing incentives or other credits, incentives or obligations have been provided the Property Owners and shall be credited by SCOLP to any of the occupants Contributor at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall .
(k) The Holding Companies will be entitled to a credit or payment at Closing in for any utility deposit, public improvement bond or similar refundable security posted for the amount benefit of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to any Project for which SCOLP receives the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payablebenefit after Closing.
6.2 On or prior to the Contribution Date, (l) Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from cause each Property Owner to distribute to the applicable Holding Companies prior to Closing all cash on hand, cash equivalents and other investments and assets, other than the Projects and related Improvements, the Personal Property or other Acquired Assets described in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Omnibus Agreement.
6.3 If 6.2 If, within ninety one hundred eighty (90180) days after the Closing Closing, either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations prorations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.26.1, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The In such event, the parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve such issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations prorations and adjustments completed pursuant to Section 6.1 hereof shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Closing Date. Prorations Contributor and SCOLP further acknowledge and agree that if neither party has identified an inaccuracy or error in the prorations or adjustments completed pursuant to prorations are not subject to, or included withinSection 6.1 within such one hundred eighty (180) days, the Minimum Amount or Maximum Amount set forth obligation to complete a post-closing adjustment shall be deemed null and void and of no further force and effect; provided, however, that the 180-day period in this Section 7.3(d6.2 shall not apply to the reproration of Current Taxes under Section 6.1(a), which will be effected promptly after the issuance of the final tax bills for the Current Taxes.
Appears in 2 contracts
Sources: Contribution Agreement (Sun Communities Inc), Contribution Agreement (Sun Communities Inc)
Adjustments and Prorations. 6.1 The following adjustments and prorations As more particularly hereinafter described, with respect to the Property, Seller shall be made entitled to all income produced from the operation of the Property which is allocable to the period prior to Closing and shall be responsible for all expenses allocable to that period; and Purchaser shall be entitled to all income and (solely with regard to Service Contracts or other obligations accepted and expressly assumed by Purchaser at Closing) responsible for all expenses allocable to the period beginning at 12:01 A.M. on the day Closing occurs. At the Closing, all items of income and expense with respect to the Property listed below shall be prorated in accordance with the foregoing principles and the rules for the specific items set forth hereafter:
6.1.1 Seller shall arrange for a billing under all those Service Contracts for which fees are based on usage and with utility companies for a billing for utilities, to include all utilities or service used up to the day Closing occurs, and Seller shall pay the resultant bills. In the event any of the Service Contracts set forth in Exhibit 5 cover periods beyond the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will the same shall be made by prorated on a cash payment and shall not be an adjustment to the Units to be issued at Closingper diem basis.
(a) Real 6.1. 2Real estate taxes and personal property taxes on the Property shall be prorated based upon the period (i.e., calendar or other tax fiscal year) to which same are attributable, regardless of whether or not any such taxes are then due and payable or are a lien. Seller shall pay at or prior to Closing (or Purchaser shall receive credit for) any unpaid taxes attributable to periods prior to the date of Closing (whether or not then due and payable or a lien as aforesaid). Seller shall receive credit for any previously paid or prepaid taxes attributable to periods from and after the date of Closing. In the event that as of the date Closing occurs the actual tax bills for the tax year or years in question are not available and the amount of taxes to be prorated as aforesaid cannot be ascertained, then rates, millages and assessed valuation of the previous year, with known changes, shall be used; and after the Closing occurs and when the actual amount of taxes for the year or years in question shall be determinable, such taxes will be re-prorated between the parties to reflect the actual amount of such taxes. 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.
6.1. 3Rentals and other payments (other than "percentage rent" and common area maintenance charges which are dealt with in Section 6.1.4 and Section 6.1.6) which are payable pursuant to Space Leases shall be prorated on a lien upon per diem basis as and when collected. Purchaser shall not be obligated to make any payment or levied against give any credit to Seller on account of or by reason of any rental or other payments which are unpaid as of the date of Closing, but shall be required to utilize diligent efforts to collect the same (but shall not be required to bring suit or terminate leases) and shall turn over Seller's share of the same within fifteen (15) days if, as and when received by Purchaser after the Closing (subject to Section 6.3). Purchaser shall not be required to institute any action or proceeding to collect any rent delinquencies.
6.1. 4Percentage rent (i.e., that portion of the Project prior rent payable to the Contribution Date (other than current taxes), and all special assessments levied on any portion of landlord by the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on tenant under a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis Space Lease which is a percentage of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion sales or of the Project and applicable to the period after the Contribution Date dollar amount of sales), if any, payable under each Space Lease shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project lease year thereunder in which the Closing occurs on a per diem basis as and Ownerwhen collected. Any percentage rent collected by Purchaser including any percentage rent which is delinquent and pertaining to (i) an entire lease year or accounting period of a tenant under a Space Lease which ends on a date prior to the date of Closing, and relating to the (ii) that portion of a lease year or accounting period of such tenant covering a period prior to the Contribution Date, shall be paid by Owner date of Closing where such lease year or Contributor on or accounting period begins prior to the Contribution Date ordate of Closing and ends thereafter shall in both cases (subject to Section 6.3) be paid to Seller within thirty (30) days of receipt by Purchaser. Purchaser shall not be required to institute any action or proceeding to collect any delinquent percentage rent.
6.1. 5Gas, if not paidwater, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water electricity, heat, fuel, sewer and other utility bills for the Projectutilities charges to which Section
6.1.1 cannot be applied, and all other operating the governmental licenses, permits and other expenses to be incurred with respect to the Project and Owner, and inspection fees relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project)Shopping Center, shall be prorated on an accrual a per diem basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Adjustments and Prorations. 6.1 8.1 The following adjustments and prorations shall be made at the Closing between SCOLPSeller and Purchaser computed to, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall but not be an adjustment to including, the Units to be issued at ClosingClosing Date.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project on or prior to the Contribution Date (other than current taxes)Closing Date, and all special assessments levied on any portion of the Project for improvements installed prior to the Contribution Date, Closing Date shall be paid by Owner or Contributor prior to the Contribution DateSeller. Current All current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis in accordance with the date such taxes first become due and payable to the municipality or taxing authority, it being understood that such taxes are payable in advance, and shall be paid by Contributor Seller or SCOLPPurchaser, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Projectbills, and all other operating and other expenses incurred with respect to the Project and OwnerProject, and relating to the period prior to the Contribution Closing Date, shall be paid by Owner or Contributor on or Seller. Tenants are billed for water and sewer usage in arrears. Any water and sewer usage fees Purchaser collects after the Closing which are applicable to periods prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall Closing will be paid to Seller following receipt by SCOLP to Contributor on the Contribution DatePurchaser.
(c) Charges under Project Contracts (as defined below) attributable which are assigned to Purchaser at Purchaser's request and relating to the period prior to the Contribution Closing Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount Seller and all charges due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable not assigned to the period after and including the Contribution Date Purchaser shall be paid by SCOLP to Contributor on the Contribution DateSeller.
(d) All rental and other revenues collected by Owner the Seller up to the Contribution Closing Date which are allocable to the period prior subsequent to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (shall be paid by Seller to Purchaser. All rental and other revenues actually collected by the “Purchaser during the month of Closing Month”)attributable to rent due for such month of Closing, and Rents not delinquent more than thirty days designated by the tenant as of the Closing Date (payment for those residents which remain in occupancy at the Project)future rent, shall be prorated between Seller and Purchaser based on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such monthmonth each owned the Project. SCOLP shall be paid or shall receive a credit for Except as provided in the pro rata share of the collected Rents received for the Closing Month. In addition preceding paragraph, to the foregoingextent Purchaser collects, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date within ninety (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety 90) days after the Closing DateClosing, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay any rental or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents revenues allocable to the period prior to the Closing Date are Date, the Purchaser shall pay the same to Seller; provided, however, Purchaser is assuming no obligation whatsoever for the collection of such rentals or revenues and all rentals and revenues collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed subsequent to the Contributor. The Owner Closing Date shall not distribute or assign always, in the first instance, be applied first to the Contributor most current rentals and revenues, if any, then due under the Contributor Tenant Leases or otherwise. Further, Seller shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as rent from any person while they remain a tenant of the Closing Date and the expense of Project, nor shall Seller institute any legal fees associated with eviction or lockout proceedings against any residents to recover delinquent rents. Purchaser shall have no obligation to remit to Seller any such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within delinquent rents collected later than ninety (90) days after the Closing Closing.
(e) All security and other deposits held under the Tenant Leases, together with any interest accrued thereon (to the extent applicable law requires interest to be paid by the holder of such deposits), shall be paid by Seller to Purchaser in accordance with the laws of the State of Michigan or Purchaser shall receive an appropriate credit on the closing statement.
(f) Any real estate transfer tax, intangible tax, documentary tax and other taxes or charges levied on the transfer and conveyance contemplated herein shall be paid by Seller.
(g) Accrued interest on the NCMC Mortgage Loan shall be prorated between Seller and Purchaser.
8.2 If after the closing either SCOLP Seller or Contributor Purchaser discovers any inaccuracies or errors in the pro rations prorations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2Closing, such party Seller and Purchaser shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations the said prorations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Closing Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Sale Agreement (Sun Communities Inc)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current All taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney real estate taxes and other professional feespersonal property taxes, the Acquisition Loancollected rents, charges for utilities, including water, sewer, and the fuel oil, and for utility services, maintenance services, maintenance and service contracts, all operating costs and expenses payable by Ownerexpenses, Holding Company or Contributor hereunder and all other rents, income, costs, and charges of every kind which in any manner relate to the ownership of the Property (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), but not including insurance premiums) shall be paid prorated to the Date of Closing, except that, if Seller does not receive the Purchase Price (by Contributor and receipt of wired funds or by receipt in hand of an official bank cashier's check) on the Date of Closing, all prorations shall not be charged tomade as of the following business day. If the amount of said taxes, assessments, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit rents is not known on the Contribution Date of Closing, they shall be paid by SCOLP to the Contributor apportioned on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any basis of the occupants at amounts for the Project for any reasonpreceding year, with a reapportionment as soon as the new amounts can be ascertained. If such taxes and the same have not been fully satisfied assessments shall thereafter be reduced by Closingabatement, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discountsabatement, incentives less the reasonable cost of obtaining the same, shall be apportioned between the parties, provided that neither party shall be obligated to institute or obligationsprosecute proceedings for an abatement unless otherwise agreed. In all eventsBuyer shall be responsible for the payment of any assessments or notice of assessments made after the date of Date of Closing hereof for any public improvement, all debts, obligations, charges, liabilities and liens with provided Buyer takes title hereunder. With respect to security deposits, if any, made by tenants at the Project Property and actually received in hand by Seller, Buyer shall receive credit therefore. Any deposits on utilities paid by Seller shall be fully paid returned to Seller. The foregoing provisions of this Section 8 shall not apply to any taxes, assessments, or other payments, which are directly payable by tenants under 10 their leases (if any) or reimbursable by such tenants to the owner of the Property, as landlord, under their leases (if any). On the Date of Closing, Seller shall deliver to Buyer all inventories of supplies on hand at the Property owned by Seller, if any, at no additional cost to Buyer. Seller shall be responsible for and satisfied or credited or paid discharge as and when due all obligations related to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On Property which had accrued at or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this AgreementClosing.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Purchase and Sale Agreement (President Casinos Inc)
Adjustments and Prorations. 6.1 The following adjustments and prorations 5.1 Seller shall be made at entitled to all income produced from the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion operation of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date Property which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after and shall be responsible for all expenses allocable to that period; and Buyer shall be entitled to all income and responsible for all expenses allocable to the period beginning at 12:01 A.M. on the Closing Date. At Closing, they all items of income and expense with respect to the Property shall remain be prorated in accordance with the property foregoing provisions and the rules for the specific items set forth hereafter:
5.1.1 Seller shall arrange for a billing under all those Service Contracts for which fees are based on usage and with utility companies for a billing for utilities, to include all utilities or service used up to the Closing Date, and Seller shall pay the resultant bills. In the event any of the Owner Service Contracts set forth in EXHIBIT 3 cover periods beyond the Closing Date the same shall be prorated on a per diem basis.
5.1.2 Real estate taxes, general, special and/or SCOLPbetterment assessments and personal property taxes shall be prorated for those taxes which are due and payable as of the Closing Date. In the event that as of the Closing Date the actual tax bills for the tax year or years in question are not available and the amount of taxes to be prorated as aforesaid cannot be ascertained, then rates, millages and assessed valuation of the previous year, with known changes, shall be used; and after the Closing occurs and when the actual amount of taxes for the year or years in question shall be determinable, such taxes will be re-prorated between the parties to reflect the actual amount of such taxes.
5.1.3 Rentals and other payments (other than "percentage rent" and common area maintenance charges which are dealt with in SECTION 5.1.4 and SECTION 5.1.6) which are payable pursuant to Space Leases shall be prorated on a per diem basis as and when collected (subject to the provisions of Section 5.3). Buyer shall not be obligated to make any payment or give any credit to Seller on account of or by reason of any rental or other payments which are unpaid as of the Closing Date, but shall be required to turn over Seller's share of the same within ten (10) days if, as and when received by Buyer after the Closing; likewise, Seller agrees to turn over Buyer's share of any payments received from tenants applicable to any period from and after the date of Closing within ten (10) days of Seller's receipt of same; this provision shall survive Closing.
5.1.4 Percentage rent; if any, payable under each Space Lease shall be prorated with respect to the lease year thereunder in which Closing occurs on a per diem basis as and when collected. Any percentage rent collected by Buyer including any percentage rent which is delinquent and pertaining to (i) an entire lease year or accounting period of a tenant under a Space Lease which ends on a date prior to the Closing Date, or (ii) that portion of a lease year or accounting period of such tenant covering a period prior to the Closing Date where such lease year or accounting period begins prior to the Closing Date and ends thereafter shall in both cases be paid to Seller within ten (10) days of receipt by Buyer; and if any tenant's Space Lease provides for offsets or distributed deductions against percentage rent, then such offsets or deductions shall be prorated in the same manner as the percentage rent itself is prorated. This provision shall survive Closing.
5.1.5 Gas, water, electricity, heat, fuel, sewer and other utilities charges to which SECTION 5.
1.1 cannot be applied, and the governmental licenses, permits and inspection fees and operating expenses relating to the ContributorShopping Center (expressly excluding therefrom, however, such expenses relating to the initial construction of the Shopping Center), shall be prorated on a per diem basis.
5.1.6 Common area maintenance expenses and charges shall be prorated. The Owner Seller shall be responsible for all common area expenses and charges incurred prior to the Closing Date, and Buyer shall be responsible for the same accruing on and subsequent to the Closing Date. All common area expense payments made by each tenant and such charges paid under its Space Lease for the entire lease year during which the Closing occurs, including end-of-year adjustments, if any, shall be prorated between Seller and Buyer in the following manner: Not later than three (3) days prior to Closing, Seller shall deliver to Buyer, with regard to each Shopping Center tenant required to pay common area charges ("CAM Charges") under its lease, a detailed computation showing all CAM Charge expenses incurred by Seller for the period from the beginning of each such tenant's then current billing period for CAM Charges (e.g., calendar year, lease year, etc.) through the Closing Date, any CAM estimated payments or charges collected by Seller relating to such tenant (hereinafter "CAM Estimates"), and a ▇▇▇▇ for the tenant's pro rata share of CAM Charges (i.e., for CAM charges through the Closing Date net of any such CAM Estimates held by Seller), together with all invoices and other evidence documenting such CAM Charges in detail required by such tenant's lease. Buyer shall send any such bills to tenants promptly following Closing, in which event such tenant shall pay any amount shown due directly to Seller, and except as otherwise stated in Section 5.3.3 below Buyer shall have no responsibility to collect same. However, if any tenant rightfully refuses to pay such ▇▇▇▇ for CAM Charges due through the Closing Date, then Buyer shall resubmit such ▇▇▇▇ to any such tenant at the same time as Buyer next submits Buyer's own ▇▇▇▇ to any such tenant; and any payment thereafter made by any such tenant on account of CAM Charges shall belong to and be forwarded within ten (10) days of its receipt to Seller until Seller's ▇▇▇▇ is paid in full. Any CAM Estimates for any tenant shall be retained by Seller up to the amount of the pre-Closing CAM Charges payable by such tenant as evidenced by such bills and computations delivered by Seller at Closing, and Buyer shall receive a credit for any excess CAM Estimates collected by Seller.
5.1.7 All prepaid rentals, other prepaid payments (other than monthly real estate tax estimates or installments), security deposits paid pursuant to Space Leases, electric, gas, sewer and water deposits deposited with Seller by tenants, (including any accrued interest required under any Space Lease on all of the foregoing, unless Seller is entitled to retain the benefit thereof) under any Space Leases, license agreements or concession agreements relating to the Property, shall all belong to Buyer and all shall be assigned and delivered to Buyer at Closing, whereupon Seller shall be released from all liability with respect thereto. At Seller's option, Buyer shall receive a cash credit in the amount of all Security Deposits to be delivered to Buyer at Closing, and Seller may retain same.
5.1.8 Buyer shall not distribute be responsible for any charges, salaries, vacation pay or assign fringe benefits of employees of Seller prior to or following the Closing and none of the foregoing shall be prorated.
5.2 All prorations and payments to be made under the foregoing provisions shall be made on the basis of a written statement or statements delivered to Buyer by Seller and approved by Buyer. In the event any prorations, apportionments or computation shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same, provided that it makes written demand on the one from who it is entitled to such adjustment within two (2) years after the erroneous payment or computation was made; this provision shall survive Closing.
5.3 All accounts receivable flowing from the Property shall be treated as follows:
5.3.1 Buyer and Seller agree to treat all base or minimum rental payments received from a tenant as applicable to base or minimum rent which was owed by that tenant, if any, first for the month prior to the Contributor month in which Closing occurs and next for the month in which Closing occurs until the base or minimum rental amount due to Seller for such periods have been collected. In the event that there remains any unpaid base or minimum rent for a period prior to such periods, all payments of base or minimum rent received from such tenant shall be applied to sums owed Buyer before any part thereof shall be treated as belonging to Seller. In the event that there remains any unpaid tenant receivable other than base or minimum rent (including without limitation any tax, CAM, insurance or percentage rent payments) for any period prior to Closing, all payments received from any tenant in arrears (whether base or minimum rent or any other amount) shall be applied first to any such sums owed Buyer from such tenant before any part thereof shall be treated as belonging to Seller.
5.3.2 In the event that any tenant of Seller or Buyer shall hereafter apply or shall have heretofore applied for relief under the provisions of any bankruptcy or similar laws for the protection of debtors, the provisions of SECTION 5.3.1 shall not apply, and the Contributor parties shall not have the right to seek collectioncollection of their respective accounts, through litigation or otherwisetheir entitlements being determined by the Closing and the other provisions of this Agreement. Neither party shall have the right to enter into any transactions that purport to compromise claims belonging to the other, of unpaid Rents. Any eviction actions which are on-going as of without the other party's prior written consent.
5.3.3 If at the Closing Date any tenants owe Seller any money (i.e. reimbursements to Seller for payment of liens or violations on the Property that were created by tenant(s) but that Seller is required hereunder to satisfy in order to effectuate the sale of the Property or rent arrears (which shall include CAM and tax reimbursements)), Seller shall have the expense right, subsequent to the Closing, to collect such sums directly from the tenants, including bringing lawsuits against the tenants (at Seller's sole expense) for such collection (except that Seller is prohibited from bringing a lawsuit against any tenant(s) to collect rent in arrears for a period of thirty (30) days after such dispute or arrears has arisen (the "Buyer Collection Period"); instead Buyer agrees to use commercially reasonable efforts to collect such arrears on Seller's behalf, if Buyer is unsuccessful in collecting the tenant arrears by the expiration of the Buyer Collection Period, then Seller shall have the right to collect such sums directly form the tenants including bringing lawsuits against the tenants (at Sellers sole expense) for such collection, however, Seller agrees that any such legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and action or collection shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property include any disturbance of the Owner and shall not be paid possession, use or occupancy of the tenants or any right to evict the tenants, whether pursuant to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions lease provisions or otherwise, and all amounts Buyer shall at Seller's expense join in any lawsuit and/or also participate or cooperate with Seller in its collection attempts. Buyer will (at Seller's expense) join in such a lawsuit or action only if the same does not include or require disturbance of the possession of any tenants."
5.3.4 In the event Seller has granted rent concessions to tenants under space lease(s) that would extend beyond the Closing Date, Buyer shall receive credit for same.
5.4 Fixed Minimum Rent as defined in the Ground Leases, due for under the payment of employment taxes with respect theretoGround Leases and payments due under the Tallahassee Land Agreement shall be prorated on a per diem basis. Overage Rent as defined in the Ground Leases, shall be paid by Owner pro rated on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens per diem basis with respect to Fixed Minimum Rent component at Closing, with adjustment to be made after the Project shall be fully end of the applicable Lease Year, as to any changes and/or adjustments as a result of Percentage Rent paid and satisfied or credited or paid to SCOLP on the Contribution Dateby subtenants as defined therein, except only the Existing Mortgage and the lien for taxes not yet due and payablesuch Lease Year.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. 5.5 The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date provisions of this AgreementArticle 5 will survive Closing.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Agreement of Sale (Inland Western Retail Real Estate Trust Inc)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes All revenues arising from the operation of the Stations earned or accrued up until 11:59 p.m. on the day immediately preceding the Closing Date, and all expenses, costs and liabilities, arising from the operation of the Stations incurred, accrued or payable up until such time, including expenses arising under the Assumed Contracts, tower rentals, business and license fees, utility charges, real and personal property taxes which are a lien upon or Taxes levied against any portion of the Project prior to the Contribution Date (Assets, property and equipment rentals, applicable copyright or other than current taxes)fees, sales and all special assessments levied on any portion of the Project prior to the Contribution Dateservice charges, other Taxes, wages, salaries, vacation, sick and employee compensation pay, shall be paid prorated between Buyer and Seller in accordance with the principle that (i) Seller shall receive all revenues, refunds and deposits of Seller held by Owner third parties, and shall be responsible for all expenses, costs and liabilities incurred, payable or Contributor prior allocable to the Contribution Date. Current real estate conduct of the business and personal property taxes and assessments shall operations of each
(b) Adjustments or prorations pursuant to this Section 2.4 will be prorated at determined in the following manner:
(i) Adjustments or prorations to be paid on the Closing effective Date will be determined as of the Closing Date close of business on a calendar year basis, understanding that real estate taxes date agreed upon by Buyer and Seller (the "Determination Date"); and in the State absence of Florida are payable in arrears. Such proration any such agreement between Seller and Buyer, the Determination Date shall be made on the basis 16th Business Day before the Closing Date. Within 5 Business Days after the Determination Date, Seller shall submit to Buyer its good faith determination of the adjustments or prorations required by this Section 2.4 as of the Determination Date. Seller's determination of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date adjustment under this Section 2.4 shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with GAAP, consistently applied. If Buyer disagrees with the terms determination made by Seller of this Agreementthe adjustments or prorations, and Buyer shall give prompt written notice thereof, but in no event later than 5 Business Days after notice of Seller's determination, specifying in reasonable detail the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).nature and
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real All real estate taxes and personal property taxes which are a lien upon or levied against any portion of for the Project prior to the Contribution Date then current fiscal period, monthly rent, security deposits, utilities (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective if not terminated as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate Closing) and personal property taxes for the current year if water and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date sewer use charges shall be prorated and adjusted between the parties on a calendar year basis and fuel value shall be paid by Contributor adjusted as of the Date of Closing and the net amount thereof shall be added to or SCOLPdeducted from, as the case may be.
(b) The amount , the Purchase Price payable by the Buyer at the time of all unpaid water and other utility bills for delivery of the Project which are not directly billed deed. Notwithstanding anything herein to the tenants of the Projectcontrary, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, no proration shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills made for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project“Delinquent Rents”), . Buyer shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with make a credit for good faith attempt (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing but Buyer shall not be subject required to pro ration. Contributor shall have no further rights following Closing with respect institute suit or collection procedures) to such collect the Delinquent Rents. In addition Sellers hereby waive their rights to bring suit against tenants to collect Delinquent Rents. Amounts collected by Buyer from any tenant showing Delinquent Rents shall be applied first to current rents owed by such tenant and then to Delinquent Rents. Any such amounts applicable to Delinquent Rents received by Buyer shall be forwarded to the foregoing, SCOLP shall also pay or provide Contributor with a credit for applicable Seller within five (5) business days. If the amount of accrued but unpaid utility fees due from said taxes is not known on the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after of Closing, they shall remain be apportioned on the property basis of the Owner and/or SCOLPamounts for the preceding year, with a reapportionment as soon as the new amounts can be ascertained. If such taxes and assessments shall not thereafter be paid reduced by abatement, the amount of such abatement, less the reasonable cost of obtaining the same, shall be apportioned between the parties, provided that neither party shall be obligated to institute or distributed to the Contributorprosecute proceedings for an abatement. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense All portions of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor special taxes or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid assessments assessed prior to the Contribution Date of Closing which are due and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period payable prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment Date of employment taxes with respect thereto, Closing shall be paid by Owner on or prior to Sellers and those portions of any such special taxes and assessments due and payable after the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), Closing shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLPBuyer.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at All revenues arising from the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to Station up until midnight on the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project day prior to the Contribution Date (other than current taxes)Closing Date, and all special assessments levied expenses arising from the Station up until midnight on any portion of the Project day prior to the Contribution Closing Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current including business and license fees (including any retroactive adjustments thereof), utility charges, real estate and personal property taxes and assessments levied against the Assets, accrued employee benefits such as vacation time and sick time, property and equipment rentals, applicable copyright or other fees, sales and service charges, taxes (except for taxes arising from the transfer of the Assets hereunder), and similar prepaid and deferred items, shall be prorated at between Buyer and Seller in accordance with the Closing effective as principle that Seller shall receive all revenues, and all refunds to Seller and deposits of the Closing Date on a calendar year basisSeller held by third parties, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLPresponsible for all expenses, as the case may be.
(b) The amount of all unpaid water costs and other utility bills for the Project which are not directly billed liabilities allocable to the tenants conduct of the Project, and all other operating and other expenses incurred with respect to business or operations of the Project and Owner, and relating to Station for the period prior to the Contribution Closing Date, and Buyer shall receive all revenues and shall be paid by Owner or Contributor on or prior to the Contribution Date orresponsible for all expenses, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water costs and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are obligations allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part conduct of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as business or operations of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated Station on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and for the date period thereafter. Buyer shall receive credit to the extent of the value (as calculated in Seller's financial statements consistent with past practice) of any and all advertising time to be run following the Closing for which is ninety trade or barter consideration has been received by the Seller prior to the Closing. Notwithstanding the foregoing, there shall be no adjustment for, and Seller shall remain solely liable with respect to, any Contracts not included in the Assumed Contracts, or any other obligation or liability not being assumed by Buyer in accordance with Section 2.5.
A. Any adjustments or prorations will, insofar as feasible, be determined and paid on the Closing Date, with final settlement and payment being made in accordance with the procedures set forth in Section 2.4B.
B. Within sixty (60) days after the Closing Date, first Buyer shall deliver to Seller a certificate (the cost "Closing Certificate"), signed by a senior officer of collecting Buyer after due inquiry by such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect officer but without any personal liability to such Rents. In addition officer, providing a compilation of the adjustments and prorations to the foregoingbe made pursuant to this Section 2.4, SCOLP shall also pay or provide Contributor including any adjustments and prorations made at Closing, together with a credit for the amount copy of accrued but unpaid utility fees due from the tenants with respect any working papers relating to periods prior to Closingsuch Closing Certificate and such other supporting evidence as Seller may reasonably request. To the extent any Rents allocable to the period prior to If Seller shall conclude that the Closing Date are collected Certificate does not accurately reflect the adjustments and prorations to be made pursuant to this Section 2.4, Seller shall, within thirty (30) days after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as its receipt of the Closing Date and the expense Certificate, provide to Buyer its written statement of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged discrepancies believed to Contributorexist. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder▇. The Owner ▇▇▇▇ on behalf of Buyer, and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ on behalf of Seller, or their respective designees, shall not distribute any other right, claim, cause of action or asset after attempt jointly to resolve the Effective Date of this Agreement.
6.3 If discrepancies within ninety fifteen (9015) days after receipt of Seller's discrepancy statement, which resolution, if achieved, shall be binding upon all parties to this Agreement and not subject to dispute or review. If such representatives cannot resolve the discrepancy to their mutual satisfaction within such fifteen (15) day period, Buyer and Seller shall, within the following ten (10) days, jointly designate a regional or local branch of a nationally known independent public accounting firm to be retained to review the Closing either SCOLP or Contributor discovers Certificate together with Seller's discrepancy statement and any inaccuracies or errors in the pro rations or other relevant documents. The cost of retaining such independent public accounting firm shall be borne equally by Buyer and Seller. Such firm shall report its conclusions as to adjustments done at Closing pursuant to Sections 6.1 and/or 6.2this Section 2.4, such party which report shall notify the other party of such inaccuracy be conclusive on all parties to this Agreement and not subject to dispute or error by written notice including reasonable detail of the review. If, after adjustment as appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue the amount of the aforesaid adjustments paid or credited at the Closing, Buyer is determined to owe an amount to Seller, Buyer shall pay such amount to Seller, and the prorations and adjustments done at Closing pursuant if Seller is determined to Section 6.1. After the parties resolve any owe an amount to Buyer, Seller shall pay such issues oramount thereof to Buyer, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to each case within ten (10) days of such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)determination.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current All taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney real estate taxes and other professional feespersonal property taxes, the Acquisition Loancollected rents, charges for utilities, including water, sewer, and the fuel oil, and for utility services, maintenance services, maintenance and service contracts, all salaries and wages, all operating costs and expenses payable by Ownerexpenses, Holding Company or Contributor hereunder and all other income, costs, and charges of every kind which in any manner relate to the operation of the Premises (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), but not including insurance premiums) shall be paid prorated to the Date of Closing, except that if Seller does not receive the Purchase Price (by Contributor and shall not be charged toreceipt of wired funds or by receipt in hand of an official bank cashier's check) by 1 o'clock P.M., or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit Boston time, on the Contribution Date of Closing, all prorations shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any made as of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP following business day. Seller shall be entitled to 3 all delinquent rents, without adjustment or appointment, irrespective of which party collects the same in the first instance, and Buyer shall pay any such delinquent rents to Seller forthwith upon receipt. If the amount of said taxes, assessments, or rents is not known on the Date of Closing, they shall be apportioned on the basis of the amounts for the preceding year, with a credit or payment at Closing in reapportionment as soon as the new amounts can be ascertained. If such taxes and assessments shall thereafter be reduced by abatement, the amount of such discountsabatement, incentives less the reasonable cost of obtaining the same, shall be apportioned between the parties, provided that neither party shall be obligated to institute or obligationsprosecute proceedings for an abatement unless otherwise agreed. In all eventsBuyer shall be responsible for the payment of any assessments or notice of assessments made after the date of execution hereof for any public improvement, all debts, obligations, charges, liabilities and liens with provided Buyer takes title hereunder. With respect to security deposits, if any, made by tenants on the Project Premises and actually received in hand by Seller, Buyer shall receive credit therefor in the proration of rents. Any deposits on utilities paid by Seller shall be fully paid and satisfied returned to Seller. The foregoing provisions of this section shall not apply to any taxes, assessments, or credited other payments which are directly payable by tenants under their leases or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior reimbursable by such tenants to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all owner of the cash and cash equivalent assets held by Owner Premises, as of landlord, under their leases. On the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this AgreementClosing, Seller shall deliver to Buyer all inventories of supplies on hand at the Premises owned by Seller, if any, at no additional cost to Buyer.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hancock John Realty Income Fund LTD Partnership)
Adjustments and Prorations. 6.1 The following adjustments items are to be apportioned between Buyer and prorations shall be made at Seller as of 11:59 p.m. of the day preceding the Closing between SCOLP, Owner Date (and Contributor. The Buyer and Seller shall endeavor to compute all closing adjustments and prorations will be made by a cash payment and shall not be an adjustment at least five (5) business days prior to the Units to be issued at Closing.Closing Date):
(a) Security deposits, if any, under the Leases.
(b) Real estate taxes taxes, water charges, sewer charges, gas and personal property taxes which are a lien upon or levied against any portion electric charges, and other utility charges (not limited to the foregoing), fuels and other similar charges. If the amount of the Project prior to current taxes is not then ascertainable, the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, adjustment thereof shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate the most recent ascertainable taxes;
(c) If, at the date of this Agreement, the Project, or any part thereof, shall be or shall have been affected by an assessment or assessments which are or may become payable in annual installments of which the first installment is then due or has been paid, then for purposes of this Agreement all the unpaid installments of any such assessment, including those which are to become due and personal property taxes for payable after the current year if delivery of the Deed, shall be deemed to be due and payable and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of be liens upon the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis affected thereby and shall be paid and discharged by Contributor or SCOLPSeller thereof, as upon delivery of the case may be.Deed;
(bd) The amount of all unpaid water Prepaid rents and other utility bills for prepaid additional rents under the Project which are not directly billed to the tenants Leases shall be pro rated as of the Project, Closing Date. Such adjustment and all other operating and other expenses incurred apportionment to be made at Closing shall be made only with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Datesuch items actually collected.
(c1) Charges under Project Contracts (as defined below) attributable With respect to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as any arrearages of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through chargesor additional rents, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which Seller shall furnish Buyer at Closing with a statement of such arrearages. Any sums received after the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days from tenants in arrears as of the Closing Date shall be first applied to such arrearages and shall be paid over to Seller by Buyer promptly following receipt by Buyer. Buyer agrees to make diligent efforts to collect all such arrearages and fully cooperate with Seller to collect such arrearages.
(2) To the extent that items of additional rent cannot be determined at Closing (or even if determined or determinable, to the extent said items have not been collected), the amount thereof for those residents which remain in occupancy at the Project)period ending on the Closing Date and accountings showing a calculation thereof, shall be prorated paid and furnished to Seller by Buyer if, as and when received by Buyer after Closing. The apportionment shall be made on an accrual basis. SCOLP the calendar year basis so that Seller shall either pay the Contributor or provide the Contributor with receive a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month thereof based upon the fraction of which the numerator is the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition year elapsing to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which denominator is ninety days after the Closing Date365 (subject, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, orhowever, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in rent is collected other than a calendar year basis such as lease year basis the event the parties are unable to resolve issues, a final judgment has been rendered with respect to calculations will be made upon such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(dother basis).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Butler International Inc /Md/)
Adjustments and Prorations. 6.1 (a) The following adjustments and prorations Purchase Price shall be made subject to adjustment as specified in this Section 2.06:
(i) Real estate Taxes, assessments and other levies and charges based on the value of real property (whether incurred directly or by Contract) (collectively, “Real Property Taxes”) and all other Non-Income Taxes with respect to all Facilities directly or indirectly transferred to Purchaser at the Closing between SCOLP(“Transferred Facilities”) for the then current Tax Period, Owner including any installment of Real Property Taxes or other Non-Income Taxes for the then current Tax Period not yet due and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes)payable, and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at Closing using the calculations in Section 9.08(c)(i). If the Closing effective occurs prior to receipt of the tax ▇▇▇▇(s) for Real Property Taxes for the Tax Period in which the Closing occurs, or for any prior Tax Period, Purchaser and the Sellers shall prorate the Real Property Taxes for such Tax Period or Periods based upon 105% of the amount set forth on the Real Property Tax Certificate. If the Closing occurs prior to receipt of the tax ▇▇▇▇(s) for any other Non-Income Taxes (other than sales Taxes) for the Tax Period in which the Closing occurs, or for any prior Tax Period, then Purchaser and Sellers shall prorate such Non-Income Taxes based upon 100% of the amount set forth on the Non-Income Tax Certificate. Sales Taxes shall be prorated based upon the latest sales Tax Returns with respect to the Transferred Facilities that are filed by Sellers prior to the determination of the Final Adjustment Amount. There shall be no re-proration of such Real Property Taxes or other Non-Income Taxes upon the issuance of tax bills for the tax fiscal year in which the Closing occurs that are received after the determination of the Final Adjustment Amount. Neither the Sellers, on the one hand, nor Purchaser, on the other hand, shall have any further Liability to each other for such current Tax period Real Property Taxes or other Non-Income Taxes after payment of the Final Adjustment Amount, except as set forth in Section 7.03.
(ii) The amount of rent and other charges payable under Real Property Leases for Transferred Facilities as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made prorated on the basis of the amount owed by the Company pursuant to the Real Property Leases applicable to the Transferred Facilities at such time, according to the ratio of real estate (i) the number of days from the first date prior to the Closing upon which a rental payment was due under the applicable Real Property Lease through the day before the Closing Date, to (ii) the number of days from and personal including the Closing Date to the next succeeding date upon which a rental payment is due under the applicable Real Property Lease.
(iii) The amount of premiums payable under any insurance policies or binders of insurance (including general liability insurance, property taxes for insurance and workers’ compensation insurance) issued in favor of any of the current year if Sellers and the Company as of the Closing Date (collectively, “Insurance Policies”) and covering any Transferred Facilities shall be prorated on the basis of the amount owed by the Company pursuant to such Insurance Policies at such time, according to the ratio of (i) the number of days from the first date prior to the Closing upon which a premium payment was due under the applicable Insurance Policy to the Closing Date, to (ii) the number of days from the Closing Date to the next succeeding date upon which an insurance payment is due under the applicable Insurance Policy, as adjusted in the event that the period between payments under such Insurance Policy does not match the period of coverage provided by such payment.
(iv) The Sellers shall receive credits equal to the amounts of:
(A) all deposits of cash or cash equivalents made with respect to any Transferred Facility as of the Closing Date as security under any Contract, utility, public service or other arrangement to the extent that the taxing authorities have issued statements therefor, but otherwise based same remains on real estate taxes assessed deposit for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion benefit of the Project Company;
(B) all prepaid expenses as of the Closing Date attributed to the businesses, activities and operations of the Business applicable to the period after Transferred Facilities, including such portion of prepaid expenses under Contracts (including amounts in escrow for Real Property Taxes and any other expenses under Real Property Leases), advertising expenses, trade association dues and trade subscriptions, and fees for permits, licenses, variances, authorizations, exemptions, orders, registrations and approvals of all Governmental Authorities that are required; and
(C) all funds expended by any Bally Entity to the Contribution extent not reimbursed by insurance proceeds prior to the Closing Date to repair fire damage at the Facility located at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(v) Purchaser shall receive credits equal to:
(A) the amount of any refunds actually remitted by the Company following the Closing to the extent such refunds are (x) for membership fees and dues under Membership Contracts entered into prior to the Closing Date and (y) required by applicable Law to be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor given within three or SCOLPseven Business Days, as the case may be, of execution of the applicable Membership Contract;
(B) the amount, if any, by which $275,000 exceeds the value of all Inventory of the Business as of the Closing Date (treating Deferred Facilities as part of the Business for this purpose), as set forth in the books and records of the Business Owners maintained and used in the operation of the Business;
(C) the amount, if any, by which the liability of the Business for Paid-In-Full Membership Contracts and prepaid Financed Membership Contracts as of the Closing Date (treating Deferred Facilities as part of the Business for this purpose), as determined in accordance with the methodologies set forth on Exhibit 2.06(a)(v)(C) and based on the books and records of the Business Owners maintained and used in the operation of the Business, exceeds $11,256,718; and
(D) the amount, if any, of cash operating expenses that are the sole responsibility of the Sellers, individually or collectively, which (x) relate to the Business, (y) are not paid within 90 days after Closing and (z) are paid by Purchaser.
(b) The amount of all unpaid water Sellers shall prepare and other utility bills for the Project which are not directly billed deliver to the tenants of the ProjectPurchaser, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period within 3 Business Days prior to the Contribution DateClosing, a reasonably detailed schedule of tentative prorations and adjustments described in the preceding Section 2.06(a). Such estimated prorations and adjustments, if and to the extent known and agreed upon as of the Closing, shall be paid by Owner Purchaser to the Sellers (if the prorations result in a net credit to the Sellers) or Contributor by the Sellers to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be paid by Purchaser at the Closing (the “Preliminary Adjustment Payment”).
(c) Subject to the last sentence of Section 2.06(a)(i), after the Closing Date, the Sellers and Purchaser shall work together to determine the actual amount of the prorations and adjustments (the “Initial Determination”). In the event that the Sellers and Purchaser are unable to agree upon an Initial Determination, then Purchaser shall have 120 days after the Closing Date to deliver to the Sellers a written determination (the “Determination”) of the actual amount of the prorations and adjustments including the basis for such Determination set forth in reasonable detail, expressed in United States dollars.
(d) Upon receipt of the Determination, the Sellers shall have 30 days (the “Review Period”) to review such Determination and the related computation of such prorated and adjusted amounts. In connection with the Sellers’ review of the Determination, Purchaser shall give, and shall cause the Company to give, to the Sellers and their respective Representatives full access at all reasonable times on reasonable notice to the books, records and other materials of the Company and the personnel of, and work papers prepared by or for Purchaser, the Company or its accountants used, participating or involved in the calculation of the Determination. If the Sellers have accepted such Determination in writing or have not given written notice to Purchaser setting forth in reasonable detail any objection of the Sellers to such Determination (a “Statement of Objections”) prior to the Contribution Date orexpiration of the Review Period, then such Determination shall be final and binding upon the parties (the “Final Adjustment Amount”). In the event that the Sellers deliver a Statement of Objections during the Review Period, Purchaser and the Sellers shall use their commercially reasonable efforts to agree on the actual amount of the pro rations within 30 days following the receipt by Purchaser of the Statement of Objections. If the Parties are unable to reach an agreement as to such amounts within such 30 day period, then the matter shall be submitted to Deloitte & Touche LLP, or if Deloitte & Touche LLP is unwilling or unable to serve in such capacity, to such other accounting firm as shall be mutually agreed upon by the Parties (such accountant, the “Settlement Accountant”), who, acting as an expert and not paidas an arbitrator, shall resolve the matters still in dispute and adjust the Determination to reflect such resolution and establish the Final Adjustment Amount. The Settlement Accountant shall make such determination within 45 days following the submission of the matter to the Settlement Accountant for resolution, and such determination shall be final and binding upon Purchaser and the Sellers.
(e) In the event any dispute is submitted to the Settlement Accountant for resolution as provided in Section 2.06(d), the fees, charges and expenses of the Settlement Accountant (collectively, the “Settlement Accountant’s Expenses”) shall be borne by the Parties in the following manner:
(i) if the Settlement Accountant determines that the amount set forth in the Statement of Objections delivered by the Sellers is correct, then all of the Settlement Accountant’s Expenses shall be borne exclusively by Purchaser;
(ii) if the Settlement Accountant determines that the Determination delivered by Purchaser is correct, then all of the Settlement Accountant’s Expenses shall be borne exclusively the Sellers;
(iii) if the Settlement Accountant determines that the Final Adjustment Amount is an amount other than the Determination or the amount set forth in the Sellers’ Statement of Objections, the Settlement Accountant’s Expenses shall be allocated between Purchaser, on the one hand, and the Sellers, on the other hand, pro rata based on the proportion by which the amount determined by the Settlement Accountant differs from the Determination, on the one hand, and the amount set forth in the Sellers’ Statement of Objections, on the other hand.
(f) In the event that the Final Adjustment Amount results in a credit to the Sellers, after taking into account the Preliminary Adjustment Payment, Purchaser shall pay to the Sellers, an amount equal to such unpaid expenses shall be part credit, together with interest thereon for the period from (and including) the Closing Date to (but excluding) the date of payment, at the prime rate as quoted in the Money Rates Section of The Wall Street Journal (the “Applicable Rate”), as determined and fixed on the first day of such period and adjusted to reflect the Applicable Rate on the first day of each successive fiscal quarter during the remainder of such period, by wire transfer of immediately available funds to the Purchase Price Bank Account within five Business Days following the determination of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made final amounts pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”2.06(d), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensationIn the event that the Final Adjustment Amount results in a credit to Purchaser, fringe benefits and other amounts due after taking into account the employees of Owner or Preliminary Adjustment Payment, the manager of the Project for the period prior Sellers shall pay to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paidPurchaser, an amount equal to such entire unpaid liability shall be paid in cash credit, together with interest thereon for the period from (and including) the Closing Date to (but excluding) the date of payment, at Closing.
(h) All costs the Applicable Rate, as determined and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit fixed on the Contribution Date shall be paid by SCOLP first day of such period and adjusted to reflect the Contributor Applicable Rate on the Contribution Date orfirst day of each successive fiscal quarter during the remainder of such period, if not paid, by wire transfer of immediately available funds to an amount equal account designated by Purchaser within five Business Days following the determination of the final amounts pursuant to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) Section 2.06(d). In the event any rental discountsthat the Sellers do not make such payment to Purchaser within such period, leasing incentives or other credits, incentives or obligations have been provided in addition to any of the occupants other rights and remedies Purchaser may have with respect to such non-payment, Purchaser may at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in its option cause the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect payment to the Project shall be fully paid and satisfied or credited or paid to SCOLP on Purchaser from the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be Escrow Account in accordance with the terms of this the Escrow Agreement.
(h) If an amount due under Section 2.06(f) or (g) is paid later than five Business Days following the determination of the final amounts pursuant to 2.06(d), then, for the period from (and including) such fifth Business Day following the obligations determination of either party the final amounts to pay any (but excluding) the date of payment, interest at a rate equal to 5% greater than the Applicable Rate, as determined and fixed on the first day of the such amount period and adjusted to reflect the Applicable Rate on the first day of each successive fiscal quarter during the remainder of such period, shall survive the Contribution Date. Prorations and adjustments be added to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)such amount.
Appears in 1 contract
Sources: Purchase Agreement (Bally Total Fitness Holding Corp)
Adjustments and Prorations. 6.1 The following adjustments All revenues and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment expenses with respect to the Units to be issued at Closing.
(a) Real estate taxes Property, and personal property taxes which are a lien upon or levied against any portion of the Project prior applicable to the Contribution Date (other than current taxes)period of time before and after Closing, and all special assessments levied on any portion of determined in accordance with the Project prior to the Contribution DateUniform System, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate allocated between Seller and personal property taxes and assessments shall be prorated at the Closing effective Purchaser as of the Cut-Off Time (except as expressly provided below). Pursuant to such allocation, and except as otherwise provided herein, Seller shall be entitled to all revenue and shall be responsible for all expenses for the period of time up to but not including the Closing Date on a calendar year basisDate, understanding that real estate taxes in and Purchaser shall be entitled to all revenue and shall be responsible for all expenses for the State period of Florida are payable in arrearstime from, after, and including the Closing Date. Such proration allocations and adjustments shall be shown on the Preliminary Closing Statement (with such supporting documentation as the parties hereto may reasonably require being attached as exhibits to the closing statements) and shall increase or decrease (as the case may be) the cash amount payable by Purchaser. All prorations shall be made on the basis of the amount actual number of real estate days in the year and personal property taxes month in which the Closing occurs or in the period of computation. Without limiting the generality of the foregoing, the following matters and items shall be apportioned between the parties based on actual daily amounts or, where appropriate, credited in total to a particular party, as of the Cut-off Time as provided below:
(a) To the extent possible, Accounts Payable (including amounts due under Hotel Contracts) shall be identified as of the Cut-off Time and paid in full at the Closing by Seller. Seller shall be and remain responsible for the current year if full payment of any and all other Accounts Payable (whether known or unknown) as of the Cut-off Time. Except to the extent that the taxing authorities have issued statements therefora credit therefor is provided to Purchaser hereunder at Closing, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes Seller shall indemnify and personal property taxes levied hold Purchaser harmless from and against any portion of claims arising from the Project and applicable failure to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
timely pay any Accounts Payable (bincluding amounts due under Hotel Contracts) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution DateCut-off Time.
(b) Real and personal property taxes, ad valorem taxes, assessments, water and sewer rents, rates and charges, vault charges, canopy permit fees, and other municipal permit fees and assessments (collectively, the “Property Taxes”) shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part prorated as of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution DateCut-off Time.
(c) Charges Any fees or amounts prepaid, accrued or due and payable under Project Contracts any Permits (as defined belowother than Excluded Permits and other than for utilities which proration is addressed above) attributable transferred to the period prior to the Contribution Date Purchaser shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner prorated as of the Contribution DateCut-off Time between Seller and Purchaser (including, without limitation, any fees paid or payable in connection with transfer of Permits). Prepaid charges Seller shall receive a credit for all refundable deposits made by Seller under Project Contracts attributable the Permits which are transferred to Purchaser or which remain on deposit for the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Datebenefit of Purchaser.
(d) All rental and other revenues collected by Owner up Purchaser shall receive a credit for Deposits, if any, under Bookings for the Hotel’s facilities to the Contribution Date which are allocable to extent applicable after the period prior to Closing Date. Seller shall receive a credit for coin machine, telephone, washroom, and checkroom income arising before the Contribution Date, including without limit passCut-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 belowoff Time.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date includingGas, without limit, tenant rents, pass-through charges, pass-on charges, water electricity and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), utility charges shall be prorated apportioned at Closing on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as basis of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due meter reading occurring prior to Closing. Any payments received after the ninetieth day after Closing shall not be (but subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable later readjustment as set forth below).
(f) Non-delinquent operational and/or occupancy taxes (unless amounts attributable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed directly by Seller to the Contributor. The Owner applicable taxing authority) shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going be prorated as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the ClosingCut-off Time.
(g) All compensationTelephone and telex contracts and contracts for the supply of heat, fringe benefits steam, electric power, gas, lighting and any other amounts due the employees of Owner or the manager utility service shall be prorated as of the Project Cut-off Time. Where possible, cut-off readings will be secured for all utilities on the period prior to the Contribution Closing Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs Subject to Section 14.01(q), Seller shall receive a credit for all unopened food and expenses incurred by Ownerbeverages (alcoholic, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein extent transferable under applicable Legal Requirements, and the performance of its obligations under this Agreementnon-alcoholic), including, without limitation, attorney supplies and other professional feesconsumable Inventory, which are on hand as of the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLPCut- off Time.
(i) The amount of all escrows and reserves required Any amounts prepaid or payable under the Mortgage Documents which are on deposit on the Contribution Date any Hotel Contracts shall be paid by SCOLP prorated as of the Cut-off Time. All security deposits shall be transferred to the Contributor on the Contribution Date or, if not paid, an amount equal Purchaser and all obligations with respect to such escrows and reserves security deposits shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, assumed by Purchaser and the same have not been fully satisfied by Closing, SCOLP Purchaser shall be entitled to receive a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payablesecurity deposits.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Agreement for Sale and Purchase
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations items will be made by a cash payment prorated between Walker and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties Buyer on a calendar year basis to the Closing Dat▇ ▇▇▇ the cash portion of the Purchase Price as provided in Paragraph 2(b) will be adjusted to reflect such prorations: (i) the ad valorem taxes on the Western Tract and shall be paid by Contributor or SCOLP, as for any portions of the case may be.
(b) The amount of all unpaid water and other utility bills Additional Property conveyed from Walker to Buyer for the Project which are not directly billed to calendar year 1999; (ii) any rents d▇▇ ▇▇▇ payable under any leases affecting the tenants Western Tract and for any portions of the Project, Additional Property conveyed from Walker to Buyer; and all (iii) any utilities expenses or other operating and other ▇▇▇▇▇ting expenses incurred which Walker shall have prepaid with respect to the Project and Owner, and relating to operation of ▇▇▇ ▇▇provements on the period prior to the Contribution Date, Western Tract. Walker shall be paid by Owner or Contributor on or prior to responsible for the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount payment of all prepaid water and other utility bills for assessme▇▇▇ ▇▇vied or pending against the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period Walker Property prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date Buyer shall be ▇▇▇▇onsible for all other assessments, if any, against the responsibility of Owner after Closing Walker Property levied thereafter. Ad valorem taxes and shall not be charged to Contributor. Sums received on account of such litigation shall also remain op▇▇▇▇▇▇g expenses in connection with the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, Manufacturing Facility shall be paid by Owner on or Walker for all periods prior to the Contribution Date, or, if not paid, an amount equal to closing and thereafter such entire unpaid liability shall be paid in cash at Closing.
(h) All costs ▇▇▇▇▇ting expenses and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), taxes shall be paid by Contributor and shall not be charged to, or Walker for so long as the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor Manufacturing Facility Lease is in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens ▇▇▇▇▇t. Prorations with respect to the Project Additional Property not conveyed by Walker to Buyer shall be fully paid accomplished between Buyer and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after rs under the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be Additional Property Contracts in accordance with the terms of this Agreement, the Additional Property Contracts and prorations with respect to the Foundation Lot shall be accomplished between the Buyer and the obligations of either party to pay any such amount shall survive Foundation as provided in the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)Foundation Lot Contract.
Appears in 1 contract
Sources: Contract for Purchase and Sale of Real Property (Walker B B Co)
Adjustments and Prorations. 6.1 The At Closing, the following adjustments and prorations items shall be made at the Closing adjusted or prorated between SCOLP, Owner Seller and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.Purchaser:
(a) Real estate Ad valorem taxes and personal property taxes which are a lien upon or levied against any portion of for the Project prior to Land for the Contribution Date (other than then current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments calendar year shall be prorated at the Closing effective in cash as of May 1, 2009. Seller’s pro rata portion of such taxes shall be based upon taxes actually assessed for the Closing Date on a then current calendar year basisor, understanding that real estate if for any reason such taxes in for the State of Florida are payable in arrears. Such Land have not been actually assessed, such proration shall be made based upon the amount of such taxes for the immediately preceding calendar year, and adjusted by cash settlement when exact amounts are available. If the Land is assessed and taxed as a part of a larger parcel, then, for purposes of computing tax prorations, a proportionate part of the ad valorem taxes attributable to such larger parcel shall be allocated to the Land on the basis of the amount ratio between the number of real estate gross acres of the Land and personal property the total number of gross acres comprising such larger parcel, taking into account the value and location of any improvements located on the larger parcel. All special taxes for the current year if and or assessments approved or assessed prior to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Closing Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor Seller. If Seller or SCOLPSeller’s predecessors in title have claimed any partial or total exemption from taxation of the Land based on agricultural or open space use or any other use, and if a loss of such partial or total exemption would result in the imposition of tax for a period prior to the Closing Date, Seller shall satisfy at the Closing, and shall indemnify and hold Purchaser harmless from, any tax on any of the Land for years prior to the Closing Date which become due as the case may beresult of any changes in land usage or ownership or otherwise (“Rollback Taxes”, the term Rollback Taxes shall include all interest incurred with respect to such taxes).
(b) The amount Except as otherwise provided herein, each party shall pay its share of all unpaid water other closing costs and expenses of closing in consummating the sale and purchase of the Property to be borne and paid as follows: Owner’s Title Policy paid by Purchaser Documentary stamp or other transfer taxes paid by Purchaser Survey paid by Purchaser Filing fees paid by Purchaser Property and other utility bills for the Project which are not directly billed to the tenants of the Projecttaxes through pro-rated through May 1, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be 2009 Recording fees paid by Owner Purchaser Realtor or Contributor on or prior to the Contribution Date orbroker fees, if not paidany, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution DateSeller.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree The agreements as to prorations and adjustments in this Section shall survive the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such RentsClosing. In the event that, subsequent to the Closing, any adjustments made at the Closing pursuant to this Section are agreed upon by the parties are unable hereto to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such paymentsbe erroneous, then either party hereto who is entitled to additional monies shall invoice the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not other party for such additional amounts a may be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLPowing, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any within ten days from receipt of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payableinvoice.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Contract of Sale in Lieu of Condemnation (American Locker Group Inc)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current 10.1 All taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney real estate taxes and other professional feespersonal property taxes, the Acquisition Loancollected rents, charges for utilities, including water, sewer, and the fuel oil, and for utility services, maintenance services, maintenance and service contracts, all operating costs and expenses payable by Ownerexpenses, Holding Company or Contributor hereunder and all other income, costs, and charges of every kind which in any manner relate to the operation of the Property (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), but not including insurance premiums) shall be paid prorated to the Date of Closing, except that if Seller does not receive the Purchase Price (by Contributor and receipt of wired funds or by receipt in hand of an official bank cashier's check) by 2:00, EST, on the Date of Closing, all prorations shall not be charged tomade as of the following business day. If the amount of said taxes, assessments, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit rents is not known on the Contribution Date of Closing, they shall be paid by SCOLP to the Contributor apportioned on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any basis of the occupants at amounts for the Project for any reasonpreceding year, with a reapportionment as soon as the new amounts can be ascertained. If such taxes and the same have not been fully satisfied assessments shall thereafter be reduced by Closingabatement, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discountsabatement, incentives less the reasonable cost of obtaining the same, shall be apportioned between the parties, provided that neither party shall be obligated to institute or obligationsprosecute proceedings for an abatement unless otherwise agreed. In all eventsBuyer shall be responsible for the payment of any assessments or notice of assessments made after the date of execution hereof for any public improvement, all debts, obligations, charges, liabilities and liens with provided Buyer takes title hereunder. With respect to security deposits, if any, made by tenants at the Project Property and actually received in hand by Seller, Buyer shall receive credit therefor in the proration of rents. Any deposits on utilities paid by Seller shall be fully paid and satisfied returned to Seller. The foregoing provisions of this section shall not apply to any taxes, assessments, or credited other payments, which are directly payable by tenants under their leases or paid reimbursable by such tenants to SCOLP the owner of the Property, as landlord, under their leases. On the Date of Closing, Seller shall deliver to Buyer all inventories of supplies on hand at the Contribution DateProperty owned by Seller, except only the Existing Mortgage and the lien for taxes not yet due and payableif any, at no additional cost to Buyer.
6.2 On 10.2 Post-Closing Collections. Buyer shall use commercially reasonable efforts during the twelve (12) month period immediately following the Closing to collect and promptly remit to Seller rents or other amounts due Seller for the period prior to Closing. Buyer shall apply all rents or other amounts received by Buyer, first for the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled account of Buyer for amounts currently due to a distribution from Owner in an amount equal Buyer; second to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction Seller for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant amounts due Seller for periods prior to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue Closing; and the prorations and adjustments done at Closing pursuant balance to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)retained by Buyer.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hancock John Realty Income Fund Iii Limited Partnership)
Adjustments and Prorations. 6.1 7.1 The following adjustments and prorations shall be made at the Closings between Sellers and Purchaser computed to, but not including, the applicable Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at ClosingDate.
(a) Real estate taxes and personal property taxes taxes, as well as any other taxes, charges or fees, which are a lien upon or levied against any portion of the any Project on or prior to the Contribution Date (other than current taxes)applicable Closing Date, and all special assessments levied on any portion of the Project prior to the Contribution Date, applicable Closing Date shall be paid by Owner the applicable Sellers. Further, all taxes in the nature of rollback or Contributor similar taxes charged, assessed or levied based on the prior use or any change in use of the Land or Improvements prior to the Contribution Date. Current real estate and personal property taxes and assessments applicable Closing shall be prorated at the Closing effective as obligation of the Closing Date on a calendar year basis, understanding that applicable Seller. All current real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes (the “Current Taxes”) levied against any portion of the any Project and applicable with respect to the period after tax year in which the Contribution Date Closing occurs shall be prorated and adjusted between the parties on a calendar such that each Seller is responsible for that portion of the Current Taxes allocable to the period from the beginning of such tax year basis to the respective Closing Date, and shall be paid Purchaser is responsible for that portion of the Current Taxes allocable to the period from the respective Closing Date through the end of the tax year. If the tax bills for the Current Taxes have not been issued by Contributor or SCOLPthe Closing Dates, as Sellers and Purchaser agree to use 105% of the case may beamount of the taxes for the year immediately preceding the Closings for the purpose of computing the prorations under this Section 7.1(a).
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants and of the Project, and all other operating and other expenses incurred with respect to the Project and OwnerProjects, and relating to the period periods prior to the Contribution DateClosing Dates, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to Sellers and such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating attributable to the period from and after and including the Contribution Date, Closings shall be paid by SCOLP to Contributor on the Contribution Dateobligation of Purchaser.
(c) Charges under Project Contracts (as defined below) which are assigned to Purchaser at Purchaser’s request shall be paid by Sellers, to the extent attributable to the period prior to the Contribution Date Closing Dates, and shall be paid by Owner or Contributor prior Purchaser, to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts extent attributable to the period from and after the Closing Dates, and including the Contribution Date all charges due under Project Contracts not assigned to Purchaser shall be terminated and paid by SCOLP to Contributor on the Contribution DateSellers.
(d) All rental With respect to the proration of rents, utilities and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received associated charges paid by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) tenants for the calendar month in which the Closing Date occurs (the “Closing Month”), Sellers shall provide Purchaser at Closing with a credit equal to (a) the total amount of rents and Rents other associated charges that are due and can reasonably be expected to be collected for the Closing Month, multiplied by a fraction equal to the number of days remaining in the Closing Month after and including the Closing Date divided by the total number of days in the Closing Month, less (b) any rentals and other associate charges for the Closing Month that have not delinquent more than thirty days been collected by Sellers as of the Closing Date (for those residents which remain Date. Prior to the Closing, Sellers and Purchaser shall mutually determine in occupancy at good faith the Project), shall amount of rents and other associated charges that are reasonably expected to be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after Following the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor Sellers and Purchaser shall have no further rights following Closing obligations or liabilities with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit rental revenue for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to ClosingClosing Month. To the extent any Rents allocable to the period prior to the Closing Date are collected after ClosingPurchaser collects, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing, any rental or revenues allocable to the period prior to both the Closing either SCOLP Date and the Closing Month, the Purchaser shall pay the same to the applicable Seller; provided, however, Purchaser is assuming no obligation whatsoever for the collection of such rentals or Contributor revenues and all rentals and revenues collected subsequent to the Closing Date shall always, in the first instance, be applied first to the most current rentals and revenues, if any, then due under the Tenant Leases or otherwise. Purchaser shall have no obligation to remit to any of the Sellers any such delinquent rents collected later than ninety (90) days after the Closing Date.
(e) All security and other deposits held under the Tenant Leases, together with any interest accrued thereon (to the extent applicable law requires interest to be paid by the holder of such deposits), shall be a credit to Purchaser against the Purchase Price, as described in Section 6.1. Seller shall not be permitted to apply a tenant security deposit to past due rent or other charges for any tenant in possession of a home; provided, however, that Seller and Purchaser hereby acknowledge and agree that application of security deposits to past due rent will be taken into consideration with respect to the proration calculated pursuant to Section 7.1(d) above.
(f) All p▇▇▇▇ cash remaining at the Projects at the Closing Dates shall be retained by Sellers.
7.2 If, within sixty (60) days after the Closings, any of the Sellers or Purchaser discovers any inaccuracies or errors in the pro rations prorations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2the Closings, such party Sellers and Purchaser shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations the said prorations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)Closing Dates.
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations 5.1 Seller shall be made at entitled to all income produced from the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion operation of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date Property which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date and shall be responsible for all expenses allocable to that period; and Buyer shall be entitled to all income and responsible far all expenses allocable to the period beginning at 12:01 A.M. on the Closing Date. At Closing, all items of income and expense with respect to the Property shall be prorated in accordance with the foregoing principles and the rules for the specific items set forth hereafter:
5.1.1 Seller shall arrange for a billing under all those Service Contracts for which fees are based on usage and with utility companies for a billing for utilities, to include all utilities or service used up to the Closing Date, and Seller shall pay the resultant bills. In the event any of the Service Contracts set forth in Exhibit 3 cover periods beyond the Closing Date the same shall be prorated on a per diem basis.
5.1.2 Real estate taxes, general, special and/or betterment assessments and personal property taxes shall be prorated. In the event that as of the Closing Date the actual tax bills far the tax year or years in question are not available and the amount of taxes to be prorated as aforesaid cannot be ascertained, then rates, millages and assessed valuation of the previous year, with known changes, shall be used; and after the Closing occurs and when the actual amount of taxes for the year or years in question shall be determinable, such taxes will be re-prorated between the parties to reflect the actual amount of such taxes.
5.1.3 Rentals and other payments (other than "percentage rent" and common area maintenance charges which are dealt with in Section 5.1.4 and Section 5.1.6 which are payable pursuant to Space Leases shall be prorated on a per diem basis as and when collected (subject to the provisions of Section 5.3). Buyer shall not be obligated to make any payment or give any credit to Seller on account of or by reason of any rental or other payments which are unpaid as of the Closing Date, but shall be required to turn over Seller's share of the same within ten (i0) days if, as and when received by Buyer after the Closing; this provision shall survive Closing.
5.1.4 Percentage rent; if any, payable under each Space Lease shall be prorated with respect to the lease year thereunder in which Closing occurs on a per diem basis as and when collected. Any percentage rent collected by Buyer including any percentage rent which is delinquent and pertaining to (i) an entire lease year or accounting period of a tenant under a Space Lease which ends on a date prior to the Closing Date, or (ii) that portion of a lease year or accounting period of such tenant covering a period prior to the Closing Date where such lease year or accounting period begins prior to the Closing Date and ends thereafter shall in both cases be paid to Seller within ten (10) days of receipt by Buyer; and if any tenant's Space Lease provides for offsets or deductions against percentage rent, then such offsets or deductions shall be prorated in the same manner as the percentage rent itself is prorated. This provision shall survive Closing.
5.1.5 Gas, water, electricity, heat, fuel, sewer and other utilities charges to which Section 5.1.1 cannot be applied, and the governmental licenses, permits and inspection fees and operating expenses relating to the Shopping Center, shall be prorated an a per diem basis.
5.1.6 Common Area Maintenance Charges, Real Estate Tax Reimbursements, and Similar Reimbursement of Expenses. To the extent tenants under Leases pay monthly estimates of common area maintenance charges, taxes and similar expenses (collectively, "Charges") with an adjustment at end of the fiscal year in which the Closing of the sale occurs, they shall remain be prorated in accordance with this Section 5.1.6. Until the property adjustment described in this Section is made, all amounts received by Seller, as interim payments of Charges before the Closing shall be retained by Seller, except that all interim payments received by either party for the month in which the Closing occurs shall be prorated as between Seller and Buyer based upon the number of days in that month occurring before the Closing (Seller's allocable share) and on or after the Closing (Buyer's allocable share), and the party receiving the interim payment shall remit to (if received on or after the Closing) or credit (if received before the Closing) the other party its proportionate share. All amounts received by either Seller or Buyer as interim payments of Charges on or after the Closing shall be delivered to Buyer if received by Seller and retained by Buyer until the fiscal year-end adjustment and determination of Seller's allocable share thereof. Seller shall pay all bills relating to Charges received by the Closing date and shall pay over to Buyer the excess of its collections for such Charges for fiscal year 2006 over the amounts paid out. If the amounts paid out exceed Seller's collections from tenants, then Buyer shall reimburse Seller following a post-Closing annual reconciliation (Buyer to send bills out to tenants under the Leases within sixty (6Q) days following the end of the Owner and/or SCOLPfiscal year), in which case such amounts, as and when paid by such tenants, shall be apportioned between Seller and Buyer based on the ratio of pre- and post-Closing Charges (taking into account any amounts previously collected by Seller). Each party shall have the right to inspect the other party's books and records related to the Property to confirm the calculations made by such party. Subject to Seller's reasonable review and approval, Buyer shall be responsible for preparing post-Closing fiscal year end ▇▇▇▇▇▇▇▇ for the tenants for actual Charges incurred during the fiscal year in which the Closing occurs (and Seller shall reasonably cooperate with Buyer in connection therewith) and shall provide Seller with satisfactory documentation supporting the calculations in such ▇▇▇▇▇▇▇▇. Anything hereinto the contrary notwithstanding, Seller shall be responsible for preparing and sending fiscal year end ▇▇▇▇▇▇▇▇ for the tenants for actual Charges incurred during fiscal year 2005, and shall not provide Buyer with satisfactory documentation supporting the calculations in such ▇▇▇▇▇▇▇▇. Seller shall be paid entitled to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor invoice and the Contributor collect and retain all such payments from tenants due for 2005 (and prior years) as aforesaid; provided Seller shall not have the right to commence any lawsuit or otherwise interfere with the use and occupancy rights of a Tenant in connection with any such collection efforts. Buyer covenants and agrees to seek collectionto collect any such amounts owed by tenants, through litigation or otherwise, using in good faith such efforts as are consistent with Buyer's normal collection practices and processes and any amounts so collected shall be promptly remitted to Seller upon receipt by Buyer. In the event any of unpaid Rents. Any eviction actions which are on-going as Seller's Tenants (including former lessees' of the Closing Date and the Property) requests an audit, reimbursement, adjustment, or other action with respect to rent payments or operating expense of reimbursement payments for any legal fees associated with such eviction actions incurred on and after period prior to the Closing Date Date, then Seller shall (a) reasonably cooperate with Buyer, in connection with any such action, (b) make any payment due to such Seller's Tenant attributable to such audit or to any period prior to the Closing Date, and (c) defend, indemnify, and hold Buyer harmless, and reimburse Buyer for all actual costs and damages (excluding punitive or consequential) related to, any such action or request.
5.1.7 All prepaid rentals, credit balances, other prepaid payments(other than monthly real estate tax or CAM estimates or installments), security deposits, electric, gas, sewer and water deposits deposited with Seller by tenants, (including any accrued interest required under any Space Lease on all of the foregoing, unless Seller is entitled to retain the benefit thereof) under any Space Leases, license agreements or concession agreements relating to the Property, shall all belong to Buyer and all shall be assigned and delivered to Buyer at Closing, whereupon Seller shall be released from all liability with respect thereto to the responsibility extent so paid to Buyer. At Seller's option, Buyer shall receive a cash credit in the amount of Owner after all Security Deposits to be delivered to Buyer at Closing, and Seller may retain same. All of the foregoing shall be appropriately reflected on the Closing and Statement.
5.1.8 Buyer shall not be charged responsible for any charges, salaries, vacation pay or fringe benefits of employees of Seller or Seller's insurance premiums prior to Contributor. Sums received on account of such litigation shall also remain or following the property Closing and none of the Owner and foregoing shall not be paid to the Contributor or otherwise subject to prorationprorated.
5.2 All prorations and payments to be made under the foregoing provisions shall be made on the basis of a written statement or statements delivered to Buyer by Seller and approved by Buyer. In the event any prorations, apportionments or computation shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same, provided that it makes written demand on the one from who it is entitled to such adjustment within three hundred sixty-five (f365) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit days after the Contribution Date erroneous payment or computation was made; this provision shall be disbursed or credited to Contributor at the survive Closing.
(g) 5.3 All compensationaccounts receivable flowing from the Property shall be treated as follows:
5.3.1 If the Closing shall occur before rents and all other amounts due and payable by the tenants under the Leases and all other income from the Property have actually been paid for the month in which the Closing occurs, fringe benefits the apportionment of such rents and other amounts and other income shall be upon the basis of amounts actually received by Seller. Subsequent to the Closing, if any such rents and other income are actually received by Buyer or Seller, all such amounts shall first be applied to current rents due and payable for the employees month of Owner closing, second, to post closing rents due and payable, third, to past-due rents due and payable for pre-closing periods, and fourth, any balance shall be immediately paid by Buyer to Seller or Seller to Buyer, as applicable. Following Closing, except for any prior years expense reimbursements owed to Seller, which if received by Buyer and stated to be in reference to any such prior year expense reimbursement shall be promptly remitted to Seller, Buyer shall have the manager of the Project for exclusive right to collect any unpaid rents or other amounts relating to the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, Closing and all Buyer shall make a good faith effort consistent with Buyer's normal collection practices and processes to collect any such rents and other amounts due and other income not apportioned at the Closing for the payment benefit of employment taxes with respect theretoSeller, however, Buyer shall not be required to expend any funds or institute any litigation in its collection efforts. Any amounts so collected shall be paid promptly remitted to Seller upon receipt by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at ClosingBuyer.
(h) All costs and expenses incurred by Owner5.3.2 In the event that any tenant of Seller or Buyer at the Real Estate shall hereafter apply or shall have heretofore applied for relief under the provisions of any bankruptcy or similar laws for the protection of debtors, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance provisions of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition LoanSection 5.3.1 shall not apply, and the costs and expenses payable parties shall have the right to seek collection of their respective accounts, their entitlements being determined by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, Closing and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date provisions of this Agreement. Neither party shall have the right to enter into any transactions that purport to compromise claims belonging to the other, without the other party's prior written consent.
6.3 If within ninety (90) days 5.4 Seller shall be responsible for all interest on the Note attributable to the period up to and including the day before Closing, and Buyer shall be responsible for all interest attributable to periods from and after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments Seller shall receive a credit for any escrow balances under the Assumed Loan transferred to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)Buyer.
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments Adjustments and prorations with respect to the Property shall be made at computed and determined between the parties as of 12:0l a.m. on the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.Date as follows:
(a) Real General real estate taxes for the year of closing and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments (if any) shall be prorated at the Closing effective as of the Closing Date based on a calendar year basis, understanding that the then current real estate taxes in the State of Florida are payable in arrears. Such proration shall be made (if known, based on the basis of the amount of final real estate tax bills for such period -- and if not known, based on the most recent ascertainable taxes) and the special assessments due and owing prior to Closing, and Seller or Purchaser shall receive a credit at Closing, as appropriate. Without affecting the obligations set forth in this Section 14(a), the prorations for real and personal property taxes shall be equitably pro rated on a "net" basis (i.e. adjusted for the current year all tenants' liabilities, if and to the extent that the taxing authorities have issued statements thereforany, but otherwise based on for such items). If general real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion or special assessments are not known as of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between Closing, the parties on a calendar year basis and agree to reprorate when such amounts become known. All obligations under this Section 14(a) shall be paid by Contributor or SCOLP, as survive the case may beClosing.
(b) The amount of all unpaid water All rents and other utility bills for the Project which are not directly billed to the sums receivable from tenants of the Project, Property which were earned and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are will be retained by Seller to the extent that such rents have been collected after Closing, they shall remain on or before the property of Closing Date. Rents earned and attributable to the Owner and/or SCOLP, period beginning on the Closing Date and shall not thereafter will be paid to Purchaser by the tenants, or distributed credited to Purchaser at Closing (if such rents are received by Seller prior to the ContributorClosing Date). The Owner shall not distribute All payments from tenants, on account of rent or assign otherwise, received by Seller after the Closing Date, whether attributable to the Contributor period prior to or after the Closing Date, shall be deemed to be held in trust by Seller for Purchaser and shall be promptly delivered to Purchaser by Seller for application as provided in this Section 14(b). All payments from tenants, on account of rent or otherwise, received after the Contributor Closing Date by Purchaser and all amounts received from Seller by Purchaser pursuant to the immediately preceding sentence, shall be applied first to rent or other sums due under the Leases attributable to the period beginning on the Closing Date and continuing thereafter, and then to payment to Seller on account of rents which were earned and attributable to the period prior to the Closing Date but which have not been paid when due. Any customary out of pocket costs incurred by Purchaser in collection of delinquent rentals shall be deducted by Purchaser prior to the payment to Seller on account of delinquent rentals as provided herein. Purchaser shall use commercially reasonable efforts to collect or attempt to collect delinquent rentals. Seller shall have the right to seek collection, through litigation or otherwise, contact tenants to request payment of unpaid Rentsdelinquent rentals after the Closing Date and institute legal proceedings to collect such delinquent rentals. Any eviction actions such enforcement or collection efforts by Seller shall be at Seller's sole expense.
(c) On the Closing Date, Seller will deliver to Purchaser in cash, as a credit against the Purchase Price or as an adjustment to the prorations provided for elsewhere in this Section 14, as appropriate, an amount equal to all security deposits made by tenants occupying the Property which were paid to Seller by such tenants and which have not been applied by Seller pursuant to the Leases, together with interest owing thereon pursuant to the applicable Lease, if any, and together with a listing of the tenants to which such deposits and interest are on-going owing.
(d) All amounts payable, owing or incurred in connection with the Property under the Contracts to be assumed by Purchaser under the Assignment and Assumption shall be prorated as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date Date.
(e) Seller shall be entitled to a credit for all transferable utility deposits transferred hereunder, if any. 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 responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to prorationrespective utilities involved.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date The Earnest Money shall be disbursed or credited paid to Contributor Seller at Closing and Purchaser ▇▇▇▇▇ ▇e entitled to a credit against the ClosingPurchase Price in the amount thereof.
(g) All compensation, fringe benefits utility charges that are not separately metered to tenants will be prorated to the Closing Date and other Seller will obtain a final billing therefor and pay any amounts due the employees of Owner or the manager of the Project owing therein for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, Closing Date and all Purchaser shall pay any amounts due owing for the payment of employment taxes with respect theretoperiod on and after the Closing Date. To the extent that utility bills cannot be handled in the foregoing manner, they shall be paid by Owner prorated as of the Closing Date based on or prior to the Contribution Date, or, if not paid, an amount equal to most recent bills available and reprorated when such entire unpaid liability shall be paid in cash at Closingfinal bills become known.
(h) All Purchaser shall pay its pro rata share (based on the applicable commencement date of the lease and the lease term) of all leasing commissions and tenant improvement costs and expenses incurred by Owner, payable with respect to Leases entered into after the Holding Company or Contributor date of this Agreement. If Seller has paid such amounts prior to the Contribution Date Closing Date, Purchaser shall reimburse Seller for its pro rata share of such payments at Closing. If Seller has not paid such amounts prior to the Closing Date, Purchaser shall receive a credit against the Purchase Price at Closing in connection with an amount equal to the transactions contemplated herein and the performance Seller's pro rata share of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLPsuch amounts.
(i) The amount of all escrows and reserves required under the Mortgage Documents Unless provided otherwise hereinabove, such other items which are on deposit on customarily prorated in a purchase and sale of the Contribution Date type contemplated hereunder shall be paid by SCOLP to prorated as of the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at ClosingClosing Date.
(j) In Except as provided in this Section 14, all prorations are final and there shall be no reprorations. Notwithstanding the event any rental discountsforegoing, leasing incentives or other credits, incentives or obligations have been provided to any each of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date provisions of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount 14 shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)Closing.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (T Reit Inc)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution 5 Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty 6 days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.. 7
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d). 7.
Appears in 1 contract
Sources: Contribution Agreement
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes All revenues and all expenses arising from the Business prior to the Adjustment Time, including tower rental, business and license fees, utility charges, real and personal property taxes which are a lien upon or Taxes and assessments levied against any portion the Assets, property and equipment rentals, applicable copyright or other fees (including program license payments), sales and service charges, Taxes (except for Taxes arising from the transfer of the Project Assets pursuant hereto) annual regulatory fees, amounts owing in respect of unlicensed software, music license fees and similar prepaid and deferred items, shall be prorated between Seller and Buyer in accordance with GAAP and the general principle that Seller shall receive the benefit of all revenues, and be responsible for all costs, expenses and Liabilities, allocable to the Station for the period prior to the Contribution Date (other than current taxes)Adjustment Time, and Buyer shall receive the benefit of all special assessments levied on any portion of the Project prior revenues, and be responsible for all costs, expenses and Liabilities, allocable to the Contribution DateStation on or after the Adjustment Time; subject, shall be paid by Owner or Contributor prior however, to the Contribution Date. Current real estate following:
(1) An adjustment and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made in favor of Buyer or Seller, as applicable, for the amount, if any, by which the fair market value of the goods or services to be received by the Station under their Trade Agreements as of the Adjustment Time exceeds, or is less than, the value of any advertising time remaining to be run by the Station as of the Adjustment Time.
(2) There shall be no proration for program barter, other than with respect to any cash payments due or paid in connection therewith.
(3) Seller shall be entitled to all revenue accrued and bear all expenses and other Liabilities related to the Excluded Assets, and shall retain and be solely responsible for all Non-Assumed Liabilities, including vacation time, sick-leave, bonuses and other employee fringe benefits of Employees, and no adjustment or proration shall be made with respect thereto.
(4) Seller shall be responsible for all film or programming license fees due and payable prior to the Adjustment Time (with an appropriate credit to Seller if such fee covers any period of time after the Adjustment Time), and Buyer shall be responsible for all such fees after the Adjustment Time (with an appropriate credit to Buyer if such fee covers any period of time before the Adjustment Time). Deposits for Assumed Contracts which relate to programming, if any, shall be fully credited to Seller; provided, that such credit will be reduced on a pro-rated basis based on the basis length of the amount of real estate and personal property taxes for term that the current year if and film or program was available to be aired on the Station prior to the extent Adjustment Time and the total length of the term that the taxing authorities have issued statements thereforfilm or program is available to air on the Station after the Adjustment Time.
(5) Any and all rebates which, but otherwise under any Assumed Contracts are in effect as of the Adjustment Time, may be payable after such date to any advertiser or other user of the Station’s facilities, based in part on business, advertising or services prior to the Adjustment Time, shall be borne by Seller and Buyer ratably in proportion to revenues received or volume of business done by each during the applicable period. Any and all agency commissions which are subject to adjustment after the Adjustment Time based on real estate taxes assessed for revenue, volume of business done or services rendered in part before the current tax year plus an estimated increase of 5%. Real estate taxes Adjustment Time and personal property taxes levied against any portion of in part after the Project Adjustment Time shall be shared by Seller, on the one hand, and applicable Buyer, on the other hand, ratably in proportion to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor revenue, volume of business done or SCOLPservices rendered, as the case may be, by each during the applicable period.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoingforegoing adjustments and prorations, SCOLP and Contributor (i) if the Station shall mutually agree as to have Increased Gross Cash Revenues, then the amount to Base Purchase Price shall be paid increased by the product of (A) 1.45 multiplied by (B) the Increased Gross Cash Revenues; or credited to Contributor(ii) if the Station shall have Decreased Gross Cash Revenues, then the Base Purchase Price shall be decreased by the product of (A) 1.45 multiplied by (B) the Decreased Gross Cash Revenues. For purposes hereof, “Increased Gross Cash Revenues” shall mean the amount, if any, by which gross cash revenues of the Station for Rents delinquent the Current Measurement Period exceed gross cash revenues of the Station for the Previous Measurement Period by more than thirty days ten percent (10%), and “Decreased Gross Cash Revenues” shall mean the amount, if any, by which gross cash revenues of the Station for the Previous Measurement Period exceed gross cash revenues of the Station for the Current Measurement Period by more than ten percent (10%). The “Current Measurement Period” shall mean the period commencing as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood first day of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and month including the date which is ninety days after of this Agreement and ending on last day of the month ending prior to (but not including) the Closing Date, first to . The “Previous Measurement Period” shall mean the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit same period for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closingprevious year. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property Gross cash revenues of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date Station shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be determined in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)GAAP.
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations 5.1 Seller shall be made at entitled to all income produced from the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion operation of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date Property which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after and shall be responsible for all expenses allocable to that period; and Buyer shall be entitled to all income and responsible for all expenses allocable to the period beginning at 12:01 A.M. on the Closing Date. At Closing, they all items of income and expense with respect to the Property shall remain be prorated in accordance with the property foregoing provisions and the rules for the specific items set forth hereafter:
5.1.1 Seller shall arrange for a billing under all those Service Contracts for which fees are based on usage and with utility companies for a billing for utilities, to include all utilities or service used up to the Closing Date, and Seller shall pay the resultant bills. In the event any of the Owner Service Contracts set forth in Exhibit 3 cover periods beyond the Closing Date the same shall be prorated on a per diem basis.
5.1.2 Real estate taxes, general, special and/or SCOLPbetterment assessments and personal property taxes shall be prorated for those taxes which are due and payable as of the Closing Date. In the event that as of the Closing Date the actual tax bills for the tax year or years in question are not available and the amount of taxes to be prorated as aforesaid cannot be ascertained, then rates, millages and assessed valuation of the previous year, with known changes, shall be used; and after the Closing occurs and when the actual amount of taxes for the year or years in question shall be determinable, such taxes will be re-prorated between the parties to reflect the actual amount of such taxes.
5.1.3 Rentals and other payments (other than “percentage rent” and common area maintenance charges which are dealt with in Section 5.1.4 and Section 5.1.6) which are payable pursuant to Space Leases shall be prorated on a per diem basis as and when collected (subject to the provisions of Section 5.3). Buyer shall not be obligated to make any payment or give any credit to Seller on account of or by reason of any rental or other payments which are unpaid as of the Closing Date, but shall be required to turn over Seller’s share of the same within ten (10) days if, as and when received by Buyer after the Closing; likewise, Seller agrees to turn over Buyer’s share of any payments received from tenants applicable to any period from and after the date of Closing within ten (10) days of Seller’s receipt of same; this provision shall survive Closing.
5.1.4 Percentage rent; if any, payable under each Space Lease shall be prorated with respect to the lease year thereunder in which Closing occurs on a per diem basis as and when collected. Any percentage rent collected by Buyer including any percentage rent which is delinquent and pertaining to (i) an entire lease year or accounting period of a tenant under a Space Lease which ends on a date prior to the Closing Date, or (ii) that portion of a lease year or accounting period of such tenant covering a period prior to the Closing Date where such lease year or accounting period begins prior to the Closing Date and ends thereafter shall in both cases be paid to Seller within ten (10) days of receipt by Buyer; and if any tenant’s Space Lease provides for offsets or distributed deductions against percentage rent, then such offsets or deductions shall be prorated in the same manner as the percentage rent itself is prorated. This provision shall survive Closing.
5.1.5 Gas, water, electricity, heat, fuel, sewer and other utilities charges to which Section 5.1.1 cannot be applied, and the governmental licenses, permits and inspection fees and operating expenses relating to the ContributorShopping Center (expressly excluding therefrom, however, such expenses relating to the initial construction of the Shopping Center), shall be prorated on a per diem basis.
5.1.6 Common area maintenance expenses and charges shall be prorated. The Owner Seller shall be responsible for all common area expenses and charges incurred prior to the Closing Date, and Buyer shall be responsible for the same accruing on and subsequent to the Closing Date. All common area expense payments made by each tenant and such charges paid under its Space Lease for the entire lease year during which the Closing occurs, including end-of-year adjustments, if any, shall be prorated between Seller and Buyer in the following manner: Not later than three (3) days prior to Closing, Seller shall deliver to Buyer, with regard to each Shopping Center tenant required to pay common area charges (“CAM Charges”) under its lease, a detailed computation showing all CAM Charge expenses incurred by Seller for the period from the beginning of each such tenant’s then current billing period for CAM Charges (e.g., calendar year, lease year, etc.) through the Closing Date, any CAM estimated payments or charges collected by Seller relating to such tenant (hereinafter “CAM Estimates”), and a ▇▇▇▇ for the tenant’s pro rata share of CAM Charges (i.e., for CAM charges through the Closing Date net of any such CAM Estimates held by Seller), together with all invoices and other evidence documenting such CAM Charges in detail required by such tenant’s lease. Buyer shall send any such bills to tenants promptly following Closing, in which event such tenant shall pay any amount shown due directly to Seller, and except as otherwise stated in Section 5.3.3 below Buyer shall have no responsibility to collect same. However, if any tenant rightfully refuses to pay such ▇▇▇▇ for CAM Charges due through the Closing Date, then Buyer shall resubmit such ▇▇▇▇ to any such tenant at the same time as Buyer next submits Buyer’s own ▇▇▇▇ to any such tenant; and any payment thereafter made by any such tenant on account of CAM Charges shall belong to and be forwarded within ten (10) days of its receipt to Seller until Seller’s ▇▇▇▇ is paid in full. Any CAM Estimates for any tenant shall be retained by Seller up to the amount of the pre-Closing CAM Charges payable by such tenant as evidenced by such bills and computations delivered by Seller at Closing, and Buyer shall receive a credit for any excess CAM Estimates collected by Seller.
5.1.7 All prepaid rentals, other prepaid payments(other than monthly real estate tax estimates or installments), security deposits paid pursuant to Space Leases, electric, gas, sewer and water deposits deposited with Seller by tenants, (including any accrued interest required under any Space Lease on all of the foregoing, unless Seller is entitled to retain the benefit thereof) under any Space Leases, license agreements or concession agreements relating to the Property, shall all belong to Buyer and all shall be assigned and delivered to Buyer at Closing, whereupon Seller shall be released from all liability with respect thereto. At Seller’s option, Buyer shall receive a cash credit in the amount of all Security Deposits to be delivered to Buyer at Closing, and Seller may retain same.
5.1.8 Buyer shall not distribute be responsible for any charges, salaries, vacation pay or assign fringe benefits of employees of Seller prior to or following the Closing and none of the foregoing shall be prorated.
5.2 All prorations and payments to be made under the foregoing provisions shall be made on the basis of a written statement or statements delivered to Buyer by Seller and approved by Buyer. In the event any prorations, apportionments or computation shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same, provided that it makes written demand on the one from who it is entitled to such adjustment within two (2) years after the erroneous payment or computation was made; this provision shall survive Closing.
5.3 All accounts receivable flowing from the Property shall be treated as follows:
5.3.1 Buyer and Seller agree to treat all base or minimum rental payments received from a tenant as applicable to base or minimum rent which was owed by that tenant, if any, first for the month prior to the Contributor month in which Closing occurs and next for the month in which Closing occurs until the base or minimum rental amount due to Seller for such periods have been collected. In the event that there remains any unpaid base or minimum rent for a period prior to such periods, all payments of base or minimum rent received from such tenant shall be applied to sums owed Buyer before any part thereof shall be treated as belonging to Seller. In the event that there remains any unpaid tenant receivable other than base or minimum rent (including without limitation any tax, CAM, insurance or percentage rent payments) for any period prior to Closing, all payments received from any tenant in arrears (whether base or minimum rent or any other amount) shall be applied first to any such sums owed Buyer from such tenant before any part thereof shall be treated as belonging to Seller.
5.3.2 In the event that any tenant of Seller or Buyer shall hereafter apply or shall have heretofore applied for relief under the provisions of any bankruptcy or similar laws for the protection of debtors, the provisions of Section 5.3.1 shall not apply, and the Contributor parties shall not have the right to seek collectioncollection of their respective accounts, through litigation or otherwisetheir entitlements being determined by the Closing and the other provisions of this Agreement. Neither party shall have the right to enter into any transactions that purport to compromise claims belonging to the other, of unpaid Rents. Any eviction actions which are on-going as of without the other party’s prior written consent.
5.3.3 “If at the Closing Date any tenants owe Seller any money (i.e. reimbursements to Seller for payment of liens or violations on the Property that were created by tenant(s) but that Seller is required hereunder to satisfy in order to effectuate the sale of the Property or rent arrears (which shall include CAM and tax reimbursements)), Seller shall have the expense right, subsequent to the Closing, to collect such sums directly from the tenants, including bringing lawsuits against the tenants (at Seller’s sole expense) for such collection (except that Seller is prohibited from bringing a lawsuit against any tenant(s) to collect rent in arrears for a period of thirty (30) days after such dispute or arrears has arisen (the “Buyer Collection Period”); instead Buyer agrees to use commercially reasonable efforts to collect such arrears on Seller’s behalf, if Buyer is unsuccessful in collecting the tenant arrears by the expiration of the Buyer Collection Period, then Seller shall have the right to collect such sums directly form the tenants including bringing lawsuits against the tenants (at Sellers sole expense) for such collection, however, Seller agrees that any such legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and action or collection shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property include any disturbance of the Owner and shall not be paid possession, use or occupancy of the tenants or any right to evict the tenants, whether pursuant to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions lease provisions or otherwise, and all amounts due for Buyer shall at Seller’s expense join in any lawsuit and/or also participate or cooperate with Seller in its collection attempts. Buyer will (at Seller’s expense) join in such a lawsuit or action only if the payment same does not include or require disturbance of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closingpossession of any tenants.”
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) 5.3.4 In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided Seller has granted rent concessions to any of tenants under space lease(s) that would extend beyond the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien Buyer shall receive credit for taxes not yet due and payablesame.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Agreement of Sale (Inland Western Retail Real Estate Trust Inc)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes Subject to the terms of this Agreement, all revenues and all expenses arising from the Business, including business and license fees, utility charges and all other fees or charges arising under real and personal property taxes which are a lien upon or Taxes and assessments levied against any portion the Assets, property and Equipment rentals, applicable copyright or other fees (including program license payments), sales and service charges, Taxes (except for Taxes arising from the transfer of the Project prior to the Contribution Date (other than current taxesAssets hereunder), annual regulatory fees, amounts owing in respect of unlicensed software, music license fees and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate similar prepaid and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project)deferred items, shall be prorated on an accrual basis. SCOLP shall either pay between Seller and Buyer in accordance with GAAP and subject to the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or general principle that Seller shall receive a credit the benefit of all revenues, and be responsible for the pro rata share of the collected Rents received for the Closing Month. In addition all costs, expenses and Liabilities, allocable to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, Station for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLPDate, and Buyer shall not receive the benefit of all revenues, and be paid to or distributed responsible for all costs, expenses and Liabilities, allocable to the Contributor. The Owner Assets on or after the Closing Date, including that Seller shall not distribute or assign receive a credit for all prepaid expenses incurred by Seller with respect to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred Assets on and after the Closing Date Date; subject, however, to the following:
(1) There shall be no proration for program barter or goods or services to be received by the responsibility Station under its trade or barter agreements as of Owner the Closing Date.
(2) Seller shall be entitled to all revenue and bear all expenses and Liabilities related to the Excluded Assets and the Non-Assumed Liabilities both prior to and after the Closing Date, except as provided in Section 5.2(c) hereof.
(b) Seller shall prepare and submit to Buyer, not later than five (5) Business Days prior to the Closing Date, a good faith written estimate of the adjustments and prorations set forth in subsection (a) above that remain unpaid as of Closing (the “Adjustments”) in accordance with this Section 2.3, along with Seller’s estimate of the Purchase Price resulting from the Adjustments (“Seller’s Estimate”). After delivery of Seller’s Estimate, including all supporting documentation of any proposed Adjustments, Buyer and Seller shall in good faith attempt to resolve prior to Closing any disputes between them with respect to the determination of the Closing Cash Payment. If as of Closing any items shall be in dispute between them with respect to the Closing Cash Payment, Seller’s Estimate, as adjusted to reflect any changes to the Adjustments agreed to by the Parties, shall be used as the amount of the Closing Cash Payment payable by Buyer on the Closing Date, with such disputed items to be settled between the Parties following Closing pursuant to subsections (c) and (d) below.
(c) Buyer shall prepare and submit to Seller, not later than thirty (30) days following the Closing Date, Buyer’s written good faith determination of the Adjustments, including any changes to the preliminary Adjustments used to determine the Closing Cash Payment and all supporting documentation of any additions or modifications to the preliminary Adjustments, along with a calculation of the Purchase Price resulting from the Adjustments as determined by Buyer (“Buyer’s Calculation”). After delivery of Buyer’s determination of the Adjustments and Buyer’s Calculation to Seller, Seller may furnish Buyer, within fifteen (15) Business Days following delivery of Buyer’s Calculation, with written notification setting forth in reasonable detail any disputes Seller has with Buyer’s determination of the Adjustments and Buyer’s Calculation. In the event that Seller does not provide such a written notification within such fifteen (15) Business Day period, Seller shall be deemed to have accepted the Adjustments and Buyer’s Calculation, which shall be final, binding and conclusive for all purposes hereunder. In the event any such written notification is timely provided, then Buyer and Seller shall, for a period of ten (10) Business Days (or such longer period as they may mutually agree), in good faith attempt to resolve any disputes between them with respect to the determination of the Purchase Price, with each Party claiming an adjustment to its credit providing the other with any documentation reasonably requested by the other Party to determine the appropriateness of such claimed Adjustment. In no event shall Buyer or Seller be permitted to dispute any item or amount that was agreed to prior to Closing in the determination of the Closing Cash Payment.
(d) If, following such ten (10) Business Day period, the Parties cannot agree on the amount of the final Adjustments, the determination shall be made by a national or regional accounting firm jointly designated by the Parties (the “Auditor”). The Auditor shall make the determination based on GAAP in effect on the Closing Date. Either Party may invoke the use of the Auditor by notifying the other Party in writing. In the event that either Party invokes the use of the Auditor, there shall be a thirty (30) day period (the “Discovery Period”) when the Parties may request of and shall provide to each other in writing or computer format where appropriate any documentation or records in the possession of the other Party that are related to a claim or defense to be made to the Auditor. Fifteen (15) Business Days after the expiration of the Discovery Period, the Parties shall have the opportunity to present their claims and supporting documentation to the Auditor. The Parties shall use their commercially reasonable efforts to cause the Auditor to render a decision within fifteen (15) Business Days after each Party shall have presented (or have foregone the opportunity to present) its claims and supporting documentation to the Auditor. The decision of the Auditor shall be final and binding on the Parties and shall not be charged subject to Contributorany judicial challenge by either Party. Sums received on account of such litigation shall also remain Within five (5) Business Days after the property of Auditor provides the Owner and shall not be paid determination to the Contributor or otherwise subject Parties, payment in accordance with that determination shall be made by the appropriate Party by wire transfer of immediately available funds in U.S. dollars, to proration.
(f) An amount equal an account designated by the Party entitled to all receive such payment. The expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, Auditor shall be paid by Owner the Party which, based on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, Auditor’s resolution of the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributordisputed item(s), shall be paid by Contributor and shall is not be charged to, or the responsibility of SCOLPprevailing Party.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior Subject to the Contribution Date (other than current taxes)terms of this Agreement, all revenues and all special assessments levied on any portion of expenses arising from the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments Business shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes between Seller and Buyer in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate accordance with GAAP and personal property taxes for the current year if and subject to the extent general principle that Seller shall receive the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount benefit of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Projectrevenues, and be responsible for all other operating costs, expenses and other expenses incurred with respect to the Project and OwnerLiabilities, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) Business for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLPDate, and Buyer shall not be paid to or distributed to receive the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, benefit of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwiserevenues, and all amounts due be responsible for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable Liabilities, allocable to the Business on or after the Closing Date, including that Seller shall receive a credit for all prepaid expenses (including prepaid tower rent) and deposits paid by or chargeable against Seller with respect to the ▇▇▇▇▇▇ Entities hereunderBusiness as of the Closing Date. The Owner Seller shall be entitled to all revenue and bear all expenses and Liabilities related to the Excluded Assets and the Non-Assumed Liabilities both prior to and after the Closing Date, provided, however, that Seller shall not distribute be obligated to credit or otherwise compensate Buyer with respect to any other right, claim, cause of action obligation to broadcast advertising on or asset after the Effective Closing Date pursuant to Barter Agreements, regardless of this whether the goods or services received pursuant to such Barter Agreements are Excluded Assets, but Buyer shall assume the obligation to broadcast advertising pursuant to Barter Agreements only to the extent provided in Section 4.1 of the Time Brokerage Agreement.
6.3 (b) Seller shall prepare and submit to Buyer, not later than five business days prior to the Closing Date, a good faith written estimate after due analysis and identification of the adjustments and prorations set forth in subsection (a) above (the “Adjustments”) in accordance with this Section 2.3, along with Seller’s estimate of the Purchase Price resulting from the Adjustments (“Seller’s Estimate”). After delivery of Seller’s Estimate, including all supporting documentation of any proposed Adjustments, Buyer and Seller shall in good faith attempt to resolve prior to Closing any disputes between them with respect to the determination of the Closing Cash Payment. If as of Closing any items shall be in dispute between them with respect to the Closing Cash Payment, Seller’s Estimate, as adjusted to reflect any changes to the Adjustments agreed to by the Parties, shall be used as the amount of the Closing Cash Payment payable by Buyer on the Closing Date, with such disputed items to be settled between the Parties following Closing pursuant to subsections (c) and (d) below.
(c) Buyer shall prepare and submit to Seller, not later than thirty days following the Closing Date, Buyer’s written good faith determination of the Adjustments, including any changes to the preliminary Adjustments used to determine the Closing Cash Payment and all supporting documentation of any additions or modifications to the preliminary Adjustments, along with a calculation of the Purchase Price resulting from the Adjustments as determined by Buyer (“Buyer’s Calculation”). After delivery of Buyer’s determination of the Adjustments and Buyer’s Calculation to Seller, Seller may furnish Buyer, within ninety fifteen business days following delivery of Buyer’s Calculation, with written notification setting forth in reasonable detail any disputes Seller has with Buyer’s determination of the Adjustments and Buyer’s Calculation. In the event that Seller does not provide such a written notification within such fifteen day period, Seller shall be deemed to have accepted the Adjustments and Buyer’s Calculation, which shall be final, binding and conclusive. In the event any such written notification is timely provided, then Buyer and Seller shall, for a period of ten business days, in good faith attempt to resolve any disputes between them with respect to the determination of the Purchase Price, with each Party claiming an adjustment to its credit providing the other with any documentation reasonably requested by the other Party to determine the appropriateness of such claimed Adjustment. In no event shall Buyer or Seller be permitted to dispute any item or amount that was agreed to by the Parties prior to Closing in the determination of the Closing Cash Payment.
(90d) If, following such ten business day period, the Parties cannot agree on the amount of the final Adjustments, the determination shall be made by a national or regional accounting firm jointly designated by the Parties (the “Auditor”). The Auditor shall make the determination based on GAAP in effect on the Closing Date. Either Party may invoke the use of the Auditor by notifying the other Party in writing. In the event that either Party invokes the use of the Auditor, there shall be a thirty day period (the “Discovery Period”) when the Parties may request of and shall provide to each other in writing or computer format where appropriate any documentation or records in the possession of the other Party that are related to a claim or defense to be made to the Auditor. Fifteen business days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail expiration of the appropriate calculationDiscovery Period, the Parties shall have the opportunity to present their claims and supporting documentation to the Auditor. The parties Parties shall attempt, in good faith, use their commercially reasonable efforts to resolve any issues with respect cause the Auditor to delinquent revenue and render a decision within fifteen business days. The decision of the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments Auditor shall be final and binding on the Parties and shall not be subject to any judicial challenge by either Party. Within five business days after the Auditor provides the determination to the Parties, payment in accordance with that determination shall be made by the terms appropriate Party by wire transfer of this Agreementimmediately available funds, and to an account designated by the obligations Party entitled to receive such payment. The expenses of either party to pay any such amount the Auditor shall survive be paid by the Contribution Date. Prorations and adjustments to prorations are Party which, based on the Auditor’s resolution of the disputed item(s), is not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)prevailing Party.
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Utility charges with respect to the Real estate taxes Property levied against Seller or the Real Property shall be apportioned as of the Closing Date. With respect to utilities (including, without limitation, electricity, solar power, telephone, gas, oil and personal property taxes water services) which are a lien upon metered and other utilities, Seller shall use reasonable efforts to have the respective companies providing such utilities read the meters on or levied against any portion of the Project immediately prior to the Contribution Date (other than current taxes)Closing Date. Seller shall be responsible for all charges based on such final meter readings as of the Closing Date, and Purchaser shall be responsible for all special assessments levied on any portion charges thereafter. To the extent such meters are not read and final bills rendered as of the Project prior Closing Date, such charges with respect to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments Real Property shall be prorated at the Closing effective as of the Closing Date utilizing an estimate of such charges reasonably approved by both Seller and Purchaser based on a calendar year basisprior utility bills, understanding that and any deposits or credits with respect to the foregoing services will be promptly returned to Seller.
(b) Apportionment of real estate property taxes in the State of Florida are payable in arrears. Such proration and assessments, water rates and charges, sewer taxes and rents and vault charges shall be made on the basis of the amount fiscal year for which assessed. If the Closing Date shall occur before the real property tax rate, water rates or charges, sewer taxes or rents or vault charges are fixed, apportionment for any item not yet fixed shall be made on the basis of the real estate property tax rate, water rates and personal property charges, sewer taxes and rents or vault charges, as applicable, for the current preceding year if and applied to the extent that latest assessed valuation. After the taxing authorities have issued statements thereforreal property taxes, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate water rates and charges, sewer taxes and personal property taxes levied against any portion rents and vault charges are finally fixed, Seller and Purchaser shall make a recalculation of the Project apportionment of same, and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor Seller or SCOLPPurchaser, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed , shall make an appropriate payment to the tenants other based upon such recalculation within thirty (30) days of receipt of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLPrecalculation.
(i) The amount of all escrows any unpaid taxes, assessments, water charges, sewer rents and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP vault charges that Seller is obligated to pay and discharge, with interest and penalties thereon (if any) to the Contributor on Closing Date may, at Seller’s option, be deemed satisfied by Seller as required hereunder by providing to Purchaser a credit against the Contribution Date orbalance of the Purchase Price, if not paid, an amount equal to such escrows provided that official bills therefor with interest and reserves shall be credited to Contributor in connection with the cash adjustment at Closingpenalties thereon are furnished by Seller when available.
(jii) In the event If any rental discountsrefund of real property taxes, leasing incentives assessments, water rates or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to sewer taxes or rents or vault charges is made after the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien Closing Date for taxes not yet due and payable.
6.2 On or a period prior to the Contribution Closing Date, Contributor (directly or indirectly through the Holding Company) same shall be entitled applied first to a distribution from Owner the reasonable out-of-pocket costs incurred in an amount equal obtaining same and the balance, if any, of such refund shall, to all of the cash extent received by Purchaser, be paid to Seller (for the period prior to the Closing Date) and cash equivalent assets held to the extent received by Owner Seller, be paid to Purchaser (for the period commencing with the Closing Date).
(c) All amounts owed by NJRCEV to Seller under the Solar Agreements as additional rent as of the Contribution Closing Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against shall be apportioned as of the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this AgreementClosing Date.
6.3 If within ninety (90d) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party The Settlement Statement shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and contain the prorations and adjustments done at Closing pursuant to required under this Section 6.13(H)(2). After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount This Section 3(H)(2) shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, Closing for the Minimum Amount or Maximum Amount set forth in Section 7.3(d)applicable statute of limitations.
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments matters and prorations items shall be made at apportioned between the Closing between SCOLPparties hereto or, Owner and Contributor. The adjustments and prorations will be made by where appropriate, credited in total to a cash payment and shall not be an adjustment to particular party, as of the Units to be issued at Closing.Cut-off Time:
(a) Real estate taxes RECEIVABLES; TRADE ACCOUNTS PAYABLE; CONTINUING OBLIGATIONS. Receivables and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, trade accounts payable shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective identified as of the Closing Date on a calendar year basisCut-off Time. Seller shall retain all Receivables. Following the Closing, understanding that real estate taxes in Seller shall have the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and right to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of collect all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the ProjectReceivables, and all other operating and other expenses incurred with respect if Purchaser shall receive any payment on account of any Receivables at any time following the Closing, Purchaser shall promptly remit such payment to Seller. Notwithstanding the Project and Ownerforegoing, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or Seller shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days guest ledger amounts accrued as of the Cut-off Time, including the amount of guest room rentals for the full night which begins on the day immediately preceding the Closing Date (Date. Purchaser will honor, for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agreeits account, the Owner shall apply any payments received during the period between the Closing Date terms and the date which is ninety days rates of all pre-closing reservations confirmed fordates after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any pre-closing down payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing on such confirmed reservations and other advance payments made with respect to such Rents. In addition to the foregoing, SCOLP shall also pay Bookings for Motel facilities for dates on or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date will be credited to Purchaser at the Closing. Seller shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property pay all trade accounts payable due as of the Owner Cut-off Time for goods and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid services received prior to the Contribution Date Cut-off Time. Purchaser may either refuse delivery of or accept and pay for which Owner will benefit goods and services received following the Cut-off Time. Purchaser shall establish its own new trade accounts with vendors to be effective from and after the Contribution Date Cut-off Time. All Continuing Obligations shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager identified as of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwiseCut-Off Time, and all amounts due for the payment of employment taxes with respect thereto, Purchaser shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to receive a credit or payment at Closing in against the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner Purchase Price in an amount equal to all the projected cost actually to be incurred by Purchaser in fulfilling such Continuing Obligations (subject to a discount reasonably determined by Seller and Purchaser to reflect the degree of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant likelihood that Purchaser will be required to Sections 6.1 and/or 6.2, satisfy such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(dContinuing Obligations).
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments matters and prorations items shall be apportioned between the parties based on actual daily amounts or, where appropriate, credited in total to a particular party, as provided below, provided all apportionments and credits made at by or in favor of Purchaser or Seller as set forth below (excluding (a)) shall only be made, to the Closing between SCOLPextent of the Purchaser Prorata Share of all such amounts in the case of Purchaser, Owner and Contributor. The adjustments and prorations to the extent of the Seller Prorata Share of all such amounts in the case of Seller, i.e. if Purchaser would otherwise be entitled to a net $100 credit as provided below, the actual credit will be made by $49, and if Seller would otherwise be entitled to a cash payment and shall not net $100 credit as provided below, the actual credit will be an adjustment to the Units to be issued at Closing.$51:
(a) Real estate The Purchaser Prorata Share of the outstanding principal balance of the Closing Financing as of the Cut-off Time shall be credited to Purchaser.
(b) All ad valorem taxes, special or general assessments, assessments under any Scheduled Encumbrances (collectively, “Property Taxes”), personal property taxes, water and sewer rents, rates and charges, vault charges, canopy permit fees, and other permit fees shall be prorated as of the Cut-off Time provided, however, (i) if any taxes or assessments relating to the period prior to the Closing are paid in installments which are then due and payable, then Owner shall pay on or before Closing Date any remaining installments thereof and (ii) real property tax prorations shall be based on when such taxes and personal assessments accrue and become a lien on the Property, notwithstanding when such taxes become due and payable, e.g., 2007 real property taxes that are payable in ▇▇▇▇ County, Illinois in 2008 will be prorated.
(c) Fees paid or payable in connection with transfer of Permits (other than Excluded Permits) shall be prorated as of the Cut-off Time.
(d) All payments due under the Management Agreement shall be prorated as of the Cut-off Time. Without limitation of the foregoing, any incentive fees due and payable under the Management Agreement for the calendar year in which Closing occurs shall be prorated between Purchaser and Seller in the same proportion as gross revenues accrue under the Management Agreement prior to and after the Cut-off Time. As an example only, if for the calendar year in which Closing occurs seventy-five (75%) percent of the gross revenues have accrued under the Management Agreement as of the Cut-off Time, Seller shall be responsible for seventy-five (75%) percent of the incentive fees and Purchaser shall be responsible for twenty-five (25%) percent of the incentive fees for such calendar year.
(e) Purchaser shall receive a credit for (i) advance payments or deposits, if any, made pursuant to any Bookings, (ii) all commissions due to credit and referral organizations attributable to stays (or portions thereof) prior to the Cut-off Time that are outstanding, and (iii) a lien percentage of all outstanding gift certificates issued for any use of the Hotel facilities including, without limitation, rooms and food and beverage, and any commitments made for the free use of any hotel facilities, which percentage shall be based upon the amount, age and historic redemption rate of gift certificates and commitments for free use at the Hotel. Seller shall receive a credit for coin machine, telephone, washroom, and checkroom income arising before the Cut-off Time.
(f) Gas, electricity and other utility charges shall be apportioned at Closing on the basis of the most recent meter reading occurring prior to Closing (but subject to later readjustment as set forth below) with Seller receiving a credit for each deposit and reserve, if any, made by or levied against on behalf of Seller for utilities so long as such deposit or reserve remains on account for the benefit of Owner or New Operating Lessee.
(g) Operational and/or occupancy taxes shall be prorated as of the Cut-off Time.
(h) Telephone and telex contracts and contracts for the supply of heat, steam, electric power, gas, lighting and any other utility service shall be prorated as of the Cut-off Time, with Seller receiving a credit for each deposit and reserve, if any, made by or on behalf of Owner or that will benefit New Operating Lessee for utilities or under contracts, including reserves maintained under the Management Agreement, provided such deposit or reserve remains on account for the benefit of Owner or New Operating Lessee. Where possible, cut-off readings will be secured for all utilities on the Closing Date.
(i) Any amounts prepaid, payable or accrued under any Hotel Contracts and Space Leases, if any, shall be prorated as of the Cut-Off Time. Percentage rent (i.e., that portion of the Project prior rent payable to landlord by tenants under the Contribution Date (other than current taxesSpace Leases which is a percentage of the amount of sales or of the dollar amount of sales), and all special assessments levied on any portion of the Project prior to the Contribution Dateif any, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments payable under each Space Lease shall be prorated at with respect to the year thereunder in which Closing effective occurs on a per diem basis. If the actual amounts to be prorated are not known as of Closing, the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration prorations shall be made on the basis of the amount best evidence then available and reconciled as provided in Section 7.02(b).
(j) Proratable Compensation of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date Employees shall be prorated and adjusted between as of the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may beCut-off Time.
(bk) The Accounts Receivable, Qualifying Receivables and trade Accounts Payable shall be identified as of the Cut-off Time. Seller shall receive a credit in the amount of the Qualifying Receivables as of the Cut-off Time. Purchaser shall receive a credit for all unpaid water trade Accounts Payable as of the Cut-off Time. Notwithstanding the foregoing, each party shall receive a credit equal to one-half of the amount of transient guest room rentals for the full night which begins on the day immediately preceding the Closing Date, provided all revenues from any bars and lounges at the Hotel shall be prorated based on the actual closing time for such bar or lounge. For example, if such bar or lounge closes at 2 a.m. on the Closing Date, Seller shall retain the revenues from such services and operations even if such revenues were generated two (2) hours after the Cut-off Time. Thereafter, revenue from the Hotel attributable to food and beverage and other utility bills for the Project which are sales or services shall belong to Owner (as indirectly owned by Seller and Purchaser). Purchaser is not directly billed to the tenants of the Projectacquiring Accounts Receivable, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, Accounts Receivable shall be paid by Owner transferred to and remain the sole property of Seller. Each of Purchaser and Seller shall be responsible for the payment of any sales and/or hotel/motel occupancy taxes collected or Contributor on or prior to otherwise due and payable in connection with the Contribution Date or, if not paid, an amount equal revenue allocated to such unpaid expenses party under this Section 7.01(k) and shall be part indemnify (which indemnity shall survive the Closing for a period of five (5) years), defend and hold the other party harmless from and against any and all Liabilities suffered or incurred as a result of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses failure to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Datepay such taxes.
(cl) Charges under Project Contracts The total value of the Unopened Consumable Inventory that constitutes alcoholic beverages as reflected in inventory thereof shall be credited to Seller.
(as defined belowm) Cash-On-Hand and Account Cash shall be credited to Seller (since Purchaser will after the Restructuring receive the economic benefit of the Purchaser Prorata Share thereof).
(n) Pre-paid premiums for polices of insurance shall be credited to Seller.
(o) The parties acknowledge that certain taxes and assessments accrue and are payable to the various local governments by any business entity operating a hotel and its related facilities. Included in those taxes and assessments may be business and occupation taxes, retail sales taxes, parking taxes, gross receipts taxes, and other special lodging or hotel taxes and assessments. For purposes of this Agreement, all of such taxes and assessments (expressly excluding taxes and assessments covered elsewhere in this Agreement or corporate franchise taxes, and federal, state and local income taxes) shall be allocated between Seller and Owner such that those attributable to the period prior to the Contribution Date Cut-off Time shall be paid by Owner or Contributor prior allocable to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts Seller and those attributable to the period after and including the Contribution Date Cut-off Time shall be paid by SCOLP allocable to Contributor on the Contribution DateOwner.
(dp) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall Seller will receive a credit for the pro rata share third-party actual out of pocket costs (provided an affiliate of Seller will be paid a project management fee for work on or after Closing as contemplated by its Asset Management Agreement) of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP following if incurred and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected (and Purchaser will as a member of Seller Mezz II contribute the Purchaser Prorata Share of such cost incurred or paid for on or after Closingthe Closing Date): The construction, they shall remain the property remodeling, renovations, equipping and furnishing of the Owner and/or SCOLPStarbuck’s space in the Hotel, up to an amount incurred and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on for before and after the Closing Date shall be not to exceed $3,500,000 in the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to prorationaggregate.
(fq) An amount equal to all expenses Such other items as are provided for in this Agreement or as are normally prorated and adjusted in the sale of a hotel shall be prorated as of the Project which were paid prior to Cut-off Time, taking into account the Contribution Date effect of the Restructuring on the ongoing economic interests of the parties through the Purchaser’s and for which Owner Seller’s ownership interest in Seller Mezz II and its direct and indirect subsidiaries that will benefit become effective after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Membership Interests (Strategic Hotels & Resorts, Inc)
Adjustments and Prorations. 6.1 The following adjustments matters and prorations items pertaining to the Purchased Assets shall be made apportioned between the parties hereto or, where applicable, credited in total to a particular party, as of 12:01 a.m. on the Closing Date (the "CUTOFF TIME"). Net credits in favor of Buyer shall be deducted from the balance of the Purchase Price at the Closing between SCOLPClosing, Owner and Contributor. The adjustments and prorations will net credits in favor of Seller shall be made by a cash payment and shall not be an adjustment added to the Units balance of the Purchase Price at the Closing. Unless otherwise indicated below, Buyer shall receive a credit for any of the following items to be issued at Closing.the extent the same are accrued but unpaid as of the Cutoff Time (whether or not due, owing or delinquent as of the Cutoff Time), and Seller shall receive a credit to the extent any of the following items shall have been paid prior to the Closing Date to the extent the payment thereof relates to any period of time after the Cutoff Time:
(a) Real estate taxes Guest ledger receivables (e.g., all amounts, including, without limitation, room charges, food and beverage charges, telephone, in-room movies and any and all incidental charges accrued to the accounts of guests occupying rooms in the Hotel as of the Cutoff Time) shall be prorated as of the Cutoff Time between Buyer and Seller. Seller shall receive a credit for all guest ledger receivables for all room nights up to and including the room night during which the Cutoff Time occurs, and Buyer shall be entitled to the amounts of guest ledger receivables for the room nights after the Cutoff Time. All restaurant and bar facilities will be closed as of the Cutoff Time, and Seller shall receive the income from the same until the Cutoff Time.
(b) All nondelinquent ad valorem taxes, special or general assessments, real and personal property taxes which are a lien upon or levied against taxes, hotel occupancy tax, water and sewer rents, rates and charges, vault charges, and any portion municipal permit fees shall be prorated as of the Project prior to the Contribution Date (other than current taxes), Cutoff Time between Buyer and all special assessments levied on any portion of the Project prior to the Contribution Date, Seller by Escrow Agent. Seller shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property charged with such taxes and assessments accrued up to, but not including, the date on which the Cutoff Time occurs, and Buyer shall be entitled to a credit for said taxes and assessments. If the amount of any such item is not ascertainable on the Closing Date, the credit therefor shall be based on the most recent available ▇▇▇▇ and adjusted as necessary post-closing as contemplated in Section 9.2.
(c) Telephone and telex contracts and contracts for the supply of heat, steam, electric power, gas, lighting and any other utility service shall be prorated at the Closing effective as of the Closing Date Cutoff Time between Buyer and Seller by the Escrow Agent. Seller shall receive a credit for all deposits, if any, made by Seller as security under any such public service contracts if the same are transferable and provided such deposits remain on a calendar year basisdeposit for the benefit of Buyer. Where possible, understanding that real estate taxes in cutoff readings will be secured for all utilities as of the State Cutoff Time. To the extent they are not available, the cost of Florida are payable in arrears. Such proration such utilities shall be made apportioned between the parties on the basis of the amount of real estate latest actual (not estimated) ▇▇▇▇ for such service and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements thereforadjusted as necessary post-closing as contemplated in Section 9.2.
(d) Any amounts prepaid or payable by Seller or Seller's Manager under any surviving Contracts, but Personal Property Leases, Tenant Leases or otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated as of the Cutoff Time between Buyer and adjusted between Seller by the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which Escrow Agent. Such amounts include but are not directly billed limited to, prepaid advertising fees, prepaid permits and licenses, prepaid dues and subscriptions, prepaid maintenance, prepaid accounting and legal services, prepaid franchise taxes and fees, prepaid visitor and convention bureau fees and prepaid utilities. Evidence supporting these items will be provided to the tenants Buyer at closing in determination of the Project, and all other operating and other expenses incurred with respect prorata credit to the Project Seller. All amounts known to be due under the Contracts and Owner, and relating Personal Property Leases with reference to the period periods prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Closing Date shall be paid by Owner Seller or Contributor prior credited to Buyer as a reduction of the Contribution Date, or, if not paid, the amount Purchase Price. Rents (including percentage rents) and other payments due under Tenant Leases shall be reserved in cash within adjusted at Closing based on current information. Any additional amounts not known and any final calculation of percentage rent not available at the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall Closing will be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to post-closing adjustments contemplated in Section 6.2 below9.2.
(e) Prepaid revenue received by Fees paid for transferable Permits in the Owner attributable to the current period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days shall be prorated as of the Closing Date Cutoff Time between Buyer and Seller by the Escrow Agent.
(for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (xf) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or Buyer shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributoradvance payments, if any, under bookings to the extent the bookings relate to a period after the Cutoff Time and have been incurred in accordance with the terms hereof.
(g) Vending machine monies will be removed by Seller as of the Cutoff Time for Rents delinquent more than thirty days as the benefit of Seller.
(h) All cash on hand in house banks (including the general manager's ▇▇▇▇▇ cash fund) on the morning of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain become the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor Buyer and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date amount thereof shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor Seller at the Closing.
(gi) All compensation, fringe benefits Buyer shall be entitled to a credit for all security and other amounts due the employees of Owner or the manager deposits held by Seller as of the Project for the period prior Cutoff Time with respect to Tenant Leases, Personal Property Leases and Contracts, to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, extent Buyer assumes such leases and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closingcontracts.
(hj) All Seller shall pay for all transfer, documentary stamp and sales taxes and fees (including State and County mortgage and deed taxes). Buyer and Seller shall each pay one-half of the escrow fees incidental to the Closing. Buyer shall pay for the all costs and expenses fees incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreementobtaining title insurance, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the all costs and expenses payable by Ownerfees related to title premiums, Holding Company or Contributor hereunder (including, without limitation, the title searches and title endorsements. Buyer shall pay for all costs and expenses specified fees associated with obtaining a Survey of the Real Property. Buyer shall pay any mortgage taxes incurred in connection with any financing of the Purchased Assets.
(k) Seller shall receive a credit equal to Seller's replacement cost for all (i) unopened boxes of Consumables, unless the condition of such Consumables renders such Consumables unusable in the ordinary course of business at the Hotel and (ii) new and unused Operating Equipment at the Hotel as of the Closing Date. This Section 9.1(k) shall be void and of no force and effect if Buyer delivers written notice to Seller at least 15 days prior to Closing that Buyer does not desire to purchase the Consumables and Operating Equipment. Following receipt of such notice, Seller shall be permitted to remove the Consumables and Operating Equipment from the Hotel.
(l) Such other items as are provided for in this Agreement or as are normally prorated and adjusted in the sale of real property or of a hotel shall be prorated as of the Cutoff Time.
(m) All city ledger accounts receivable (excluding guest ledger receivables described in Section 19.1 9.1(a) above) generated from the operation of the Hotel prior to the Cutoff Time (the "PRE-CLOSING CITY LEDGER ACCOUNTS"), shall remain the property of Seller and shall not be paid by Contributortransferred to Buyer. There shall be no adjustment to the Purchase Price for the Pre-Closing City Ledger Accounts. All accounts payable from the operation of the Hotel prior to the Cutoff Time (the "PRE-CLOSING ACCOUNTS PAYABLE"), shall be paid by Contributor Seller and shall not become the obligations of Buyer. There shall be charged to, or no adjustment to the responsibility of SCOLP.
Purchase Price for the Pre-Closing Accounts Payable. Buyer shall (i) The amount on a monthly basis, provide Seller with a listing of collections made on each Pre-Closing City Ledger Account and (ii) on a weekly basis, remit to Seller all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be amounts paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens Buyer with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payablePre-Closing City Ledger Accounts.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLPPurchasers and Contributors computed to, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall but not be an adjustment to including, the Units to be issued at ClosingClosing Date.
(a) Real estate taxes and personal property taxes which are a lien Lien upon or levied against any portion of the any Project on or prior to the Contribution Date (other than current taxes)Closing Date, and all special assessments 2350893.10 levied on any portion of the Project prior to the Contribution Date, Closing Date shall be paid by Owner or Contributor prior to the Contribution DateContributors. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basisFurther, understanding that real estate all taxes in the State nature of Florida are payable rollback or similar taxes charged, assessed or levied based on the prior use or any change in arrears. Such proration use of the Land or Improvements shall be made on the basis obligation of the amount of Contributors. All current real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes (the “Current Taxes”) levied against any portion of the any Project and applicable with respect to the period after tax year in which the Contribution Date Closing occurs, which Current Taxes are payable in arrears, shall be prorated and adjusted between the parties on a calendar such that Contributors are responsible for that portion of the Current Taxes allocable to the period from the beginning of such tax year basis to the Closing Date, and shall be paid Purchasers are responsible for that portion of the Current Taxes allocable to the period from the Closing Date through the end of the tax year. If the tax bills for the Current Taxes have not been issued by Contributor or SCOLPthe Closing Date, as Contributors and Purchasers agree to use 105% of the case may beamount of the taxes for the year immediately preceding the Closing for the purpose of computing the prorations under this Section 6.1(a).
(b) The amount of all unpaid water and other utility bills for the Project Projects which are not directly billed to the tenants of the ProjectProjects, and all other operating and other expenses incurred with respect to the Project Projects and OwnerContributors, and relating to the period prior to the Contribution Closing Date, shall be paid by Owner or Contributor Contributors on or prior to the Contribution Closing Date or, if not paid, an amount equal to such unpaid expenses shall be part shall be credited to Purchasers as of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Closing Date.
(c) Charges under Assumed Project Contracts (as defined in Section 7.1(h) below) attributable to the period prior to the Contribution Closing Date shall be paid by Owner or Contributor Contributors prior to the Contribution Closing Date, or, if not paid, the amount due shall be reserved in cash within the Owner credited to Purchasers as of the Contribution Closing Date. Prepaid All charges under the Non-Assumed Project Contracts (as defined in Section 7.1(h) below) shall be paid by Contributors, whether such charges are attributable to the period prior to the Closing Date or the period after the Closing Date. Any revenue sharing agreements or upfront fees with respect to Assumed Project Contracts which have been received by any Contributor and including are attributable to periods after the Contribution Closing Date shall be paid by SCOLP to prorated between such Contributor on the Contribution Dateand Purchasers.
(d) All rental and other revenues collected by Owner Contributors up to the Contribution Closing Date which are allocable to the period prior to the Contribution Date, including without limit pass-through from and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition by Contributors to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to ClosingPurchasers. To the extent any Rents Purchaser collects, within thirty (30) days after the Closing, any rental or revenues allocable to the period prior to the Closing Date, such Purchaser shall pay the same to Contributors; provided, however, Purchasers shall have no obligation whatsoever for the collection of such rentals or revenues, all rentals and revenues collected subsequent to the Closing Date are collected shall always, in the first instance, be applied first to the most current rentals and revenues, if any, then due under the Tenant Leases or otherwise, and Purchasers shall have no obligation to remit to Contributors any delinquent rents more than thirty (30) days past due received by Purchasers after Closing. Further, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor Contributors shall not have the right to seek collection, through litigation or otherwise, of unpaid Rentsrent from any person while they remain a tenant of any Project, nor shall Contributors institute any eviction or lockout proceedings against any residents to 2350893.10 recover delinquent rents. Any eviction actions which are on-going Purchasers shall have no obligation to remit to Contributors any such delinquent rents collected later than thirty (30) days after the Closing.
(e) An amount equal to all security and other deposits described in the Future Reservations Schedule, together with any interest accrued thereon (to the extent applicable law requires interest to be paid by the holder of such deposits) shall be credited to Purchasers as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to prorationDate.
(f) An amount equal to all operating expenses of the Project Projects which were paid prior to the Contribution Closing Date and for which Owner Purchasers will benefit after the Contribution Closing Date shall be disbursed or credited to Contributor Contributors at the Closing.
(g) All compensationPurchasers agree to, fringe benefits and will at the Closing, assume and agree to pay, discharge and perform when lawfully due the Assumed Liabilities (as defined below) as the same shall exist at the Closing Date. “Assumed Liabilities” means the liabilities, commitments and other amounts due obligations of Contributors arising after the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date Closing in connection with the transactions contemplated herein Assumed Leases and Contracts (and expressly excluding any liabilities, commitments and other obligations to the performance extent arising out of its obligations under any breach prior to the Closing). Anything to the contrary in this Section 6.1(g) notwithstanding, the Assumed Liabilities shall not include the Excluded Liabilities (as defined below) and Purchasers shall not be the successor to Contributors and Contributors hereby acknowledge and agree that, pursuant to the terms and provisions of this Agreement, neither Purchasers nor any of their affiliates shall assume or become liable to pay, perform or discharge any liability whatsoever of any Contributor, whether or not relating to the Ancillary Business Assets or the Ancillary Businesses, whether known or unknown, fixed or contingent, accrued or unaccrued, except for and to the extent that those liabilities are expressly included in the definition of Assumed Liabilities. “Excluded Liabilities” means all Liabilities (as defined below) of the Contributors (other than the Assumed Liabilities), including, without limitation: (i) the Contributors’ obligations and any Liabilities arising under this Agreement, attorney (ii) any Liabilities of the Contributors for taxes that arise in any period (or portion thereof) that ends on or before the Closing Date, (iii) any Liabilities of the Contributors for any transfer, sales or other taxes, fees or levies (including motor vehicle sales taxes) imposed by any governmental authority on or arising out of the sale of the Projects pursuant hereto; and other professional fees(iv) any Liabilities in respect of any former employee, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company current employee or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged toindependent contractor, or the responsibility beneficiaries or dependents of SCOLP.
(i) The amount of all escrows and reserves required any former employee, current employee or independent contractor, that may be payable under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows Assumed Leases and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event Contracts. “Liabilities” means any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, liabilities and obligations, chargeswhether known or unknown, liabilities and liens with respect to the Project shall be fully paid and satisfied asserted or credited unasserted, liquidated or paid to SCOLP on the Contribution Dateunliquidated, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On accrued or prior to the Contribution Datefixed, Contributor (directly absolute or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Datecontingent, after deduction for matured or unmatured or determined or determinable, including those arising under any and all costslaw, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP governmental order and those arising under any contract, agreement, arrangement, commitment or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).undertaking
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments Adjustments and prorations with respect to the Property shall be made at computed and determined between the parties as of 12:01 a.m. on the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.Date as follows:
(a) Real General real estate taxes taxes, special assessments and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made based on the basis of then current taxes (if known, based on final tax bills for such period, and if not known, based on the amount of most recent ascertainable taxes) and the special assessments due and owing prior to Closing, and Seller or Purchaser shall receive a credit at Closing, as appropriate. Without affecting the obligations set forth in this Section 13, the prorations for real estate and personal property taxes shall be equitably prorated on a “net” basis (i.e., adjusted for all tenants’ liabilities and payments of additional rent under the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed Leases for the current tax year plus an estimated increase proportionate share of 5%. Real estate taxes and personal property assessments if any, for such items). If final taxes levied against any portion or special assessments are not known as of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between Closing, the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may beagree to reprorate when such amounts become known.
(b) The amount of all unpaid water All rents and other utility bills for the Project which are not directly billed to the sums receivable from tenants of the ProjectProperty, which were earned and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall Closing Date, will be paid by Owner or Contributor prior credited to Seller to the Contribution Date, or, if not paid, extent that such rents have been collected on or before the amount due shall be reserved in cash within the Owner as of the Contribution Closing Date. Prepaid charges under Project Contracts Rents earned and attributable to the period after beginning on the Closing Date and including the Contribution Date shall thereafter will be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which Company by the tenants, or credited to Purchaser at Closing (if such rents are allocable received by the Company prior to the Closing Date). All payments from tenants, on account of rent or otherwise, received by Seller on behalf of the Company after the Closing Date, whether attributable to the period prior to or after the Contribution Closing Date, including without limit pass-through shall be deemed to be held in trust by Seller for Purchaser and pass-shall be promptly delivered to Purchaser by Seller for application as provided in this Section 13. All payments from tenants, on chargesaccount of rent or otherwise, received after the Closing Date by the Company or by Purchaser on behalf of the Company and all amounts received from Seller by Purchaser pursuant to the immediately preceding sentence, shall become a part of be applied first to rent or other sums then due under the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner Leases attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such paymentsoccurs, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received period after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect Date on account of rents earned and attributable to such Rents. In addition period, and then to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount Seller on account of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable rents which were earned and attributable to the period prior to the Closing Date are collected after Closing, they Date. Any customary out-of-pocket costs incurred by Purchaser in collection of delinquent rentals shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed deducted by Purchaser prior to the Contributorpayment to Seller on account of delinquent rentals as provided herein. The Owner Purchaser shall cause the Company to ▇▇▇▇ tenants for delinquent rentals, but need not distribute or assign to the Contributor and the Contributor initiate legal proceedings. Seller shall not have the right to seek collectioncontact tenants to request payment of delinquent rentals after the Closing Date and institute legal proceedings to collect such delinquent rentals, through litigation or otherwise, of unpaid Rentsbut shall have no right to evict any tenant. Any eviction actions such enforcement or collection efforts by Seller shall be at Seller’s sole expense.
(c) On the Closing Date, Seller shall either (i) deliver to the Company if not already held by it, in cash, or (ii) receive as a credit against the Purchase Price, an amount equal to all cash security deposits made by tenants occupying the Property which were paid to the Company by such tenants and which shall not have been applied by the Company or otherwise pursuant to the Leases, together with interest owing thereon pursuant to the applicable Lease, if any, and together with a listing (certified as true and correct by Seller) of the tenants to which such deposits and interest are onowing.
(d) All amounts payable, owing or incurred in connection with the Property under the Contracts to be retained by the Company shall be prorated as of the Closing Date.
(e) All utility deposits, if any, may be withdrawn by and refunded to Seller, and Purchaser shall make replacement deposits on behalf of the Company for utilities as may be required by the respective utilities involved.
(f) All utility charges that are not separately metered to tenants shall be prorated to the Closing Date and Seller shall obtain a final billing therefor and pay any amounts owing therein for the period prior to the Closing Date and Purchaser shall pay any amounts owing for the period on and after the Closing Date. To the extent that utility bills cannot be handled in the foregoing manner, they shall be prorated as of the Closing Date based on the most recent bills available and reprorated when such final bills become known.
(g) Purchaser shall pay all leasing commissions and tenant improvement costs payable with respect to Leases (other than for any Required Lease) approved by Purchaser and entered into after the date of this Agreement in accordance with the terms of Section 19(b) of this Agreement. If Seller has paid or caused the Company to pay such amounts prior to the Closing Date, Purchaser shall reimburse Seller for such payments at Closing. Seller shall pay all other leasing commissions and tenant improvement costs payable with respect to all other Leases except those referenced in the preceding sentence.
(h) Seller and Purchaser agree that as soon as reasonably possible after the close of the calendar year of the Closing, the parties shall undertake a final master reconciliation of CAM, taxes and other pass-going throughs and additional rent (including without limitation, percentage rent) with respect to the Leases and the Property. Such reconciliation shall be final. For purposes hereof, Seller and Purchaser shall each prepare tenant reconciliations for their respective applicable periods of ownership of the Interests. Purchaser shall transmit such information to the tenants.
(i) Unless provided otherwise hereinabove, such other items as are customarily prorated in a purchase and sale of the type contemplated hereunder shall be prorated as of the Closing Date.
(j) All wages, salaries and benefits of retained Employees, if any, shall be apportioned between Purchaser and Seller.
(k) Notwithstanding anything in this Section 13 to the contrary, if any tenant under a Lease is obligated to pay any prorated item directly to the entity imposing same, such portion of the prorated item shall not be apportioned between Seller and Purchaser. If any item of income or expense set forth in this Section 13 is subject to final adjustment after Closing, then Seller and Purchaser shall make, and each shall be entitled to, an appropriate reproration to each such item promptly when accurate information becomes available, but in any event prior to one (1) year from the date of Closing. Any such reproration shall be paid promptly in cash to the party entitled thereto.
(l) All insurance policies and Seller’s property manager’s management agreement and listing agreement (if any) shall be terminated as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date there shall be the responsibility of Owner after Closing and shall not be charged no proration with respect to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to prorationthese items.
(fm) An amount equal to all expenses Each of the Project which were paid prior to provisions of this Section 13 shall survive the Contribution Date and for which Owner will benefit after Closing until the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees later of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount one (1) year from the date of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
Closing or (jii) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to real estate taxes three (3) months after the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all issuance of the cash and cash equivalent assets held by Owner as of final tax bills for the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after year in which the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)occurs.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Glimcher Realty Trust)
Adjustments and Prorations. 6.1 The following adjustments Adjustments and prorations with respect to the Property shall be made at computed and determined between the parties as of 12:01 a.m. on the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment Date (as if Purchaser were vested with title to the Units to be issued at Closing.Property during the entire Closing Date) as follows:
(a) Real General real estate taxes taxes, special assessments and personal property taxes which are a lien upon or levied against (including, without limitation, any portion of the Project prior assessments relating to the Contribution Date (other than current taxesPermitted Exceptions), business improvement district assessments or similar charges, property owner’s association assessments, if any, water rates and all special assessments levied on any portion of the Project prior to the Contribution Datecharges, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate sewer taxes, vault charges and personal property taxes and assessments shall be prorated at for the Closing effective year in which closing occurs based on actual days involved as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made based on the basis then current taxes (if known, based on final tax bills for such period -- and if not known, based on the most recent ascertainable taxes) and the special assessments due and owing prior to Closing, and Seller or Purchaser shall receive a credit at Closing, as appropriate. If final taxes or special assessments are not known as of the amount of real estate and personal property taxes for Closing, the current year if and parties agree to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%reprorate when such amounts become known. Real estate taxes and personal property taxes levied against any portion The provisions of the Project and applicable to Section 13(a) shall survive the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may beClosing.
(b) The amount of all unpaid water All rents and other utility bills for the Project which are not directly billed to the sums receivable from tenants of the ProjectProperty, which were earned and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall Closing Date, will be paid retained by Owner or Contributor prior Seller to the Contribution Date, or, if not paid, extent that such rents have been collected on or before the amount due shall be reserved in cash within the Owner as of the Contribution Closing Date. Prepaid charges under Project Contracts Rents earned and attributable to the period after beginning on the Closing Date and including the Contribution Date shall thereafter will be paid to Purchaser by SCOLP the tenants under the Leases, or credited to Contributor on the Contribution Date.
Purchaser at Closing (d) All rental and other revenues collected if such rents are received by Owner up to the Contribution Date which are allocable to the period Seller prior to the Contribution Closing Date). All payments from tenants, including without limit pass-through and pass-on chargesaccount of rent or otherwise, received after the Closing Date by Purchaser shall become a part of be applied first to rent or other sums then due under the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner Leases attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-beginning on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, continuing thereafter, and then promptly paid to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount Seller on account of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable rents which were earned and attributable to the period prior to the Closing Date are but which were not paid when due, provided, Purchaser’s obligation shall extend only to such amounts collected within 180 days after Closingthe Closing Date. Purchaser shall use commercially reasonable efforts to collect or attempt to collect delinquent rentals, they shall remain the property of the Owner and/or SCOLP, and but shall not be required to file suit against such tenants or terminate such leases. In the event that, after the Closing, Seller recovers any payments of rent or other sums due from tenants under Leases, Seller shall promptly forward to Purchaser any portion of such payments to which Purchaser is entitled in accordance with this Section 13(b).
(c) On the Closing Date, Seller shall deliver to Purchaser in cash, as a credit against the Purchase Price or as an adjustment to the prorations provided for elsewhere in this Section 13, as appropriate, an amount equal to the cash security deposits made by tenants occupying the Property which were actually paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor Seller as set forth on Exhibit B and the Contributor which shall not have been applied by Seller or otherwise pursuant to the right Leases, together with interest owing thereon pursuant to seek collectionthe applicable Lease, through litigation if any, and together with a listing of the tenants to which such deposits and interest are owing.
(d) All amounts payable, owing or otherwise, of unpaid Rents. Any eviction actions which are on-going incurred in connection with the Property under the Contracts to be assumed by Purchaser under the Assignment and Assumption shall be prorated as of the Closing Date Date.
(e) All 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 expense respective utilities involved. In the event any payments have been received by Seller in connection with any cable or telephone contracts affecting the Property, such payment amounts, if any, shall be prorated among Seller and Purchaser to the extent any amount of any legal fees associated with such eviction actions incurred payments applies to the period of ownership of the Property occurring on and or after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to prorationDate.
(f) An amount equal At Closing, Purchaser first shall pay the entire Purchase Price to all expenses of Seller and thereafter the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date ▇▇▇▇▇▇▇ Money shall be disbursed or credited refunded to Contributor at the ClosingPurchaser.
(g) All compensation, fringe benefits utility charges that are not separately metered to tenants shall be prorated to the Closing Date and other Seller shall obtain a final billing therefor and pay any amounts due the employees of Owner or the manager of the Project owing therein for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, Closing Date and all Purchaser shall pay any amounts due owing for the payment of employment taxes with respect theretoperiod on and after the Closing Date. To the extent that utility bills cannot be handled in the foregoing manner, they shall be paid by Owner prorated as of the Closing Date based on or prior to the Contribution Date, or, if not paid, an amount equal to most recent bills available and reprorated when such entire unpaid liability shall be paid in cash at Closingfinal bills become known.
(h) All costs With respect to any matters not addressed by the provisions set forth above in this Section 13, Seller and expenses incurred by Owner, Purchaser shall prorate as of the Holding Company or Contributor prior to Closing Date such other items as are customarily prorated in a purchase and sale of the Contribution Date type contemplated hereunder. Seller and Purchaser shall each reasonably cooperate with the other in connection with the transactions contemplated herein any and the performance of its obligations under this Agreement, including, without limitation, attorney all prorations and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLPpost-Closing reconciliations provided for herein.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date orExcept as otherwise provided in Section 13(b), if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any each of the occupants at provisions of this Section 13 shall survive the Project for any reason, and Closing until the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit later of (i) one (1) year after the date of Closing or payment at Closing in (ii) three (3) months after the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all issuance of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇final tax ▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after for the Effective Date of this Agreement.
6.3 If within ninety (90) days after year in which the Closing either SCOLP or Contributor discovers any inaccuracies or errors in occurs. Not less than two (2) Business Days prior to the pro rations or adjustments done at Closing pursuant Closing, Purchaser shall prepare and deliver to Sections 6.1 and/or 6.2Seller, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, subject to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms and provisions of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject toa closing statement setting forth, or included withininter alia, the Minimum Amount or Maximum Amount set forth closing adjustments and material monetary terms of the transaction contemplated hereby as of the Closing Date, in Section 7.3(d)form reasonably acceptable to Seller. Seller shall cooperate to timely provide Purchaser with the information necessary to prepare and deliver such closing statement.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (NTS Realty Holdings Lp)
Adjustments and Prorations. 6.1 The following adjustments (a) All revenues and prorations expenses of Seller arising from the operation of the Agency, including, without limitation, those arising under the Assumed Contracts, business and license fees, utility charges, property taxes levied against the Assets, property and equipment rentals, sales and service charges, other taxes, wages, salaries, vacation and sick leave (if any, in accordance with Seller’s payroll policies and benefit plans), personal days (if any, in accordance with Seller’s payroll policies and benefit plans), commissions and other employee compensation pay, and similar prepaid and deferred items, shall be prorated between Buyer and Seller, and an appropriate adjustment to the Purchase Price shall be made, in accordance with the principle that, except as otherwise expressly set forth in this Agreement, (i) Seller shall receive all revenues, and shall be responsible for all expenses, relating to the business and operations of the Agency for the period ending at 11:59 p.m. on the day prior to the Closing Date, and (ii) Buyer shall receive all revenues, and shall be responsible for all expenses, relating to the business and operations of the Agency thereafter. An adjustment of the Purchase Price shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion in favor of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and Buyer to the extent that the taxing authorities have issued statements thereforBuyer assumes any liability under any Assumed Contract to refund (or to credit against payments otherwise due) any security deposit or similar prepayment paid to Seller by any lessee or other third party which is not otherwise credited to Buyer. Subject to Buyer’s receipt of appropriate estoppel certificates, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion adjustment of the Project and applicable Purchase Price shall be made in favor of Seller to the extent that Seller has made (A) any security deposit or similar prepayment under any Assumed Contract regardless of the period to which such deposit may be prorated or (B) any other payment under any Assumed Contract relating to the period beginning on the Closing Date, to the extent that Buyer receives the post-Closing benefits associated with such prepayment. Seller shall be liable for all the costs of employee compensation or other benefits relating to the business or operations of the Agency attributable to service with the Seller through 11:59 p.m. on the date prior to the Closing Date, including (1) all taxes and related contributions, vacations and sick pay and (2) all group medical, dental (if any, in accordance with Seller’s payroll policies and dental plans) or death benefits for expenses incurred, related to or arising from events occurring on or prior to 11:59 p.m. on the date prior to the Closing Date, or death or disability occurring on or prior to 11:59 p.m. on the date prior to the Closing Date, whether reported by the Closing Date or thereafter. Buyer shall be liable for all of the costs of employee compensation and other benefits (including the types of costs referred to in clauses (1) and (2) above) relating to the business or operations of the Agency attributable to service with Buyer on and after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may beClosing Date.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made Prorations pursuant to Section 6.2 below.
(e2.4(a) Prepaid revenue received by and the Owner attributable related adjustments to the period after and including Purchase Price for any such prorations under Section 2.4(a), will, insofar as feasible be determined in accordance with generally accepted accounting principles in the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues United States (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing MonthGAAP”), consistently applied, with final settlement and Rents not delinquent more payment by the appropriate party occurring no later than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety 90 days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing unless there is a dispute with respect to such Rents. In addition to thereto (in which event the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date payment shall be the responsibility of Owner after Closing and shall not be charged to Contributormade as set forth below). Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) Within 60 days after the Closing either SCOLP Date, Buyer shall submit to Seller its good faith determination of the adjustments or Contributor discovers any inaccuracies or errors prorations required by this Section 2.4. Buyer’s determination of the amount of adjustment under this Section 2.4 shall be made in accordance with GAAP, consistently applied. If Seller disagrees with the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2determination made by Buyer of the adjustment, such party Seller shall notify the other party of such inaccuracy or error by give prompt written notice including thereof, but in no event later than 20 days after notice of Buyer’s determination, specifying in reasonable detail the nature and extent of the appropriate calculation. The parties disagreement, and Buyer and Seller shall attempt, have a period of 30 days in good faith, which to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1disagreement. After the parties resolve any such issues or, in the event If the parties are unable to resolve issuesthe disagreement within the 30-day period, the matter shall be submitted to an independent certified public accounting firm, which is reasonably acceptable to Buyer and Seller (an “Independent Accounting Firm”), which Independent Accounting Firm shall be directed to submit a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments resolution within 30 days. The Independent Accounting Firm’s determination shall be binding on Buyer and Seller. Each party shall bear the fees and expenses of its own representatives, including its independent accountants, if any, and shall share equally the fees and expenses of the Independent Accounting Firm, if engaged, to resolve any disagreement between the parties. Within five Business Days following a final determination hereunder, the party obligated to make payment will make the payments determined to be due and owing in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)2.4.
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against For purposes of this Section 15 only, the term “Pre-Closing Owner” shall mean any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days term “Post-Closing Owner” shall mean any Owner for the period from and after 12:01 A.M. on the Closing Date, first . The terms Pre-Closing Owner and Post-Closing Owner are intended to reflect the cost different beneficial ownership of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Owners pre-Closing and post-Closing. Any payments received after the ninetieth day after Pre-Closing Owners shall not be subject entitled to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due all income produced from the tenants with respect to periods prior to Closing. To operation of the extent any Rents Properties which is allocable to the period prior to the Closing Date are collected after and shall be responsible for all expenses allocable to that period; and the corresponding Post-Closing Owner shall be entitled to all income and responsible for all expenses allocable to the period beginning at 12:01 A.M. on the day the Closing occurs. Except as expressly set forth below, at the Closing, they (i) all items of income and expense with respect to each Property shall remain be prorated in accordance with the property of foregoing principles and the Owner and/or SCOLPrules for the specific items set forth hereinafter, and (ii) the Agreed Value of each Property shall not be paid adjusted up or down at Closing by the net amount of all such prorations and adjustments in respect of such Property under this Section 15. M▇▇▇-▇▇▇▇ shall make any post-Closing payment with respect to a proration or distributed adjustment in favor of a Pre-Closing Owner of a Portfolio Property other than the Waterview Property and the Thornall Property by paying M▇▇▇-▇▇▇▇’▇ Applicable Percentage Share thereof to G▇▇▇ SLG. M▇▇▇-▇▇▇▇ shall make any such post-Closing payment with respect to the Contributor. The Owner shall not distribute Waterview Property or assign to the Contributor and Thornall Property by (i) paying the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going OP Percentage Share (as of the Closing Date Date) thereof to G▇▇▇ SLG and (ii) paying the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid balance thereof to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses holders of OP Units other than the Project which were paid prior to the Contribution Date GP and for which Owner will benefit after the Contribution Date JVLLC. M▇▇▇-▇▇▇▇ shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the make any post-Closing payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project Challenger by paying same to Challenger Mezz. At Closing M▇▇▇-▇▇▇▇ shall be fully paid and satisfied or credited or paid pay to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the G▇▇▇ SLG M▇▇▇-▇▇▇▇▇’▇ Entities hereunder. The Owner shall not distribute Applicable Percentage Share of any other right, claim, cause cash held by the OP or any of action or asset after the Effective Date its subsidiaries and 100% of this Agreementany cash held by Challenger Owner.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Contribution and Sale Agreement (Mack Cali Realty Corp)
Adjustments and Prorations. 6.1 The At Closing, the following adjustments and prorations items shall be made at the Closing adjusted or prorated between SCOLP, Owner Seller and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.Purchaser:
(a) Real estate Ad valorem taxes and personal property taxes which are a lien upon or levied against any portion of for the Project prior to Property for the Contribution Date (other than then current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments calendar year shall be prorated at the Closing effective in cash as of the Closing Date based on a current appraised values. Seller’s pro rata portion of such taxes shall be based upon taxes actually assessed for the then current calendar year basisor, understanding that real estate if for any reason such taxes in for the State of Florida are payable in arrears. Such Property have not been actually assessed, such proration shall be made based upon current appraised values and adjusted by cash settlement when exact amounts are available. If the Property is assessed and taxed as a part of a larger parcel, then, for purposes of computing tax prorations, a proportionate part of the ad valorem taxes attributable to such larger parcel shall be allocated to the Property on the basis of the amount ratio between the number of real estate gross acres of the Property and personal property the total number of gross acres comprising such larger parcel, taking into account the value and location of any improvements located on the larger parcel. All special taxes for the current year if and or assessments approved or assessed prior to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Closing Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor Seller. If Seller or SCOLPSeller’s predecessors in title have claimed any partial or total exemption from taxation of the Property based on agricultural or open space use or any other use, as and if a loss of such partial or total exemption would result in the case may beimposition of tax (“Rollback Taxes”), Purchaser shall satisfy those taxes after the Closing, prior to delinquency.
(b) The amount of all unpaid water and other utility bills Seller agrees to (i) pay the premium for basic owners Title Policy; (ii) pay for the Project which are not directly billed to the tenants preparation of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project)Deed; and (yiii) the pro rata share of the total unpaid Rents any costs for recording fees for the Closing Month based upon Deed and any releases of recorded liens created by or through Seller. Each Party will pay its own attorney’s fees. Purchaser and Seller agree to bear equally all customary escrow fees generally charged by the number of days in such monthTitle Company. SCOLP Purchaser shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due responsible for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior all endorsements to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred Title Policy required by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇▇▇▇ Entities hereunderand its mortgagee’s policy of title insurance and for any endorsements thereto. The Owner shall not distribute any other right, claim, cause Other costs of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be apportioned between Parties in accordance with the terms normal and customary practice of real estate transactions in the vicinity of the Property.
(c) The agreements as to prorations and adjustments in this Agreement, and the obligations of either party to pay any such amount Section shall survive the Contribution DateClosing. Prorations In the event that, subsequent to the Closing, any adjustments made at the Closing pursuant to this Section are determined by the Title Company to be erroneous, then either Party hereto who is entitled to additional monies shall invoice the other Party for such additional amounts as may be owing, and adjustments to prorations are not subject to, or included within, such amounts shall be paid within ten (10) days from receipt of the Minimum Amount or Maximum Amount set forth in Section 7.3(d)invoice.
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments matters and prorations items shall be made at apportioned between the Closing between SCOLPparties based on actual daily amounts or, Owner and Contributor. The adjustments and prorations will be made by where appropriate, credited in total to a cash payment and shall not be an adjustment to particular party, as of the Units to be issued at Closing.Cut-off Time as provided below:
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion To the extent possible, Accounts Payable (including amounts due under Hotel Contracts) shall be identified as of the Project prior to the Contribution Date (other than current taxes), Cut-off Time and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated in full at the Closing effective by Seller. Seller shall be and remain responsible for the full payment of any and all other Accounts Payable (whether known or unknown) as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrearsCut-off Time. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and Except to the extent that the taxing authorities have issued statements therefora credit therefor is provided to Purchaser hereunder at Closing, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes Seller shall indemnify and personal property taxes levied hold Purchaser harmless from and against any portion of claims arising from the Project and applicable failure to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
timely pay any Accounts Payable (bincluding amounts due under Hotel Contracts) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution DateCut-off Time.
(b) Real and personal property taxes, ad valorem taxes, assessments, water and sewer rents, rates and charges, vault charges, canopy permit fees, and other municipal permit fees and assessments (collectively, the “Property Taxes”) shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part prorated as of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution DateCut-off Time.
(c) Charges Any fees or amounts prepaid, accrued or due and payable under Project Contracts any Permits (as defined belowother than Excluded Permits and other than for utilities which proration is addressed above) attributable transferred to the period prior to the Contribution Date Purchaser shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner prorated as of the Contribution DateCut-off Time between Seller and Purchaser (including, without limitation, any fees paid or payable in connection with transfer of Permits). Prepaid charges Seller shall receive a credit for all refundable deposits made by Seller under Project Contracts attributable the Permits which are transferred to Purchaser or which remain on deposit for the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.benefit of Purchaser
(d) All rental and other revenues collected by Owner up Purchaser shall receive a credit for Deposits, if any, under Bookings for the Hotel’s facilities to the Contribution Date which are allocable to extent applicable after the period prior to Closing Date. Seller shall receive a credit for coin machine, telephone, washroom, and checkroom income arising before the Contribution Date, including without limit passCut-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 belowoff Time.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date includingGas, without limit, tenant rents, pass-through charges, pass-on charges, water electricity and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), utility charges shall be prorated apportioned at Closing on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as basis of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due meter reading occurring prior to Closing. Any payments received after the ninetieth day after Closing shall not be (but subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable later readjustment as set forth below).
(f) Non-delinquent operational and/or occupancy taxes (unless amounts attributable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed directly by Seller to the Contributor. The Owner applicable taxing authority) shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going be prorated as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the ClosingCut-off Time.
(g) All compensationTelephone and telex contracts and contracts for the supply of heat, fringe benefits steam, electric power, gas, lighting and any other amounts due the employees of Owner or the manager utility service shall be prorated as of the Project Cut-off Time. Where possible, cut-off readings will be secured for all utilities on the period prior to the Contribution Closing Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs Seller shall receive a credit for all Consumables and expenses incurred by Owner, Liquor Inventory which are on hand as of the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLPCut-off Time.
(i) The amount of all escrows and reserves required Any amounts prepaid or payable under the Mortgage Documents which are on deposit on the Contribution Date any Hotel Contracts shall be paid by SCOLP prorated as of the Cut-Off Time. All security deposits shall be transferred to the Contributor on the Contribution Date or, if not paid, an amount equal Purchaser and all obligations with respect to such escrows and reserves security deposits shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, assumed by Purchaser and the same have not been fully satisfied by Closing, SCOLP Purchaser shall be entitled to receive a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payablesecurity deposits.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Hotel (Moody National REIT I, Inc.)
Adjustments and Prorations. 6.1 5.1 The following adjustments and prorations Pre Closing Partners shall be made entitled to an adjustment of the Unadjusted Purchase Amount based upon revenues and expenses allocable to the period prior to Closing from the operation of the Property which are received or paid post Closing, and a similar adjustment for revenues and expenses allocable to the period post Closing that are received and paid pre Closing as provided herein. The Pre Closing Partners shall be entitled to all revenue, and responsible for all expenses, allocable to the period ending at 12:00 A.M. on the day Closing occurs. At the Closing between SCOLPall items of revenue and expense with respect to the Partnership assets listed below shall be prorated in accordance with the foregoing principles or in accordance with the rules for specific items set forth hereafter:
5.1.1 The Operating Partnership shall arrange for a billing under all those Service Contracts for which fees based on usage and with utility companies for a billing for utilities, Owner to include all utilities or service used up to the day Closing occurs, and Contributorany unpaid Pre Closing expenses shall increase the Adjustment Amount. The adjustments In the event any of the Service Contracts set forth in Exhibit 5 cover periods beyond the Closing the same shall be prorated on a per diem basis and prorations will be made by any amount owed Post Closing that is a cash payment and Pre Closing expense shall not be an adjustment increase in that amount of the Adjustment Amount; any amount prepaid that is a Post Closing expense shall be a decrease in the Adjustment Amount. All Pre Closing expenses shall be allocated to the Units Pre Closing Partners in accordance with the terms of the Partnership Agreement in effect prior to the Closing. All utility deposits of Operating Partnership on the Closing Date shall either be issued at Closingwithdrawn and paid to Pre Closing Partners or the amount of such deposits shall be a decrease in the Adjustment Amount.
(a) 5.1.2 Real estate taxes and personal property taxes on the Property shall be prorated based upon the period (i.e., calendar or other tax fiscal year) to which same are attributable, regardless of whether or not any such taxes are then due and payable or are a lien upon lien. Tax prorations shall be based on gross taxes less maximum available discount (4%). As set forth in 5.1.1 above, expenses properly allocated to the period Post Closing and prepaid shall decrease the Adjustment Amount accordingly, and expenses properly allocated to the period Pre Closing that are owed shall increase the Adjustment Amount accordingly. In the event that as of the date Closing occurs the actual tax bills for the tax year or levied against any years in question are not available and the amount of taxes to be prorated as aforesaid cannot be ascertained, then rates, mileage's and assessed valuation of the previous year, with known changes, shall be used; and after the Closing occurs and when the actual amount of taxes for the year or years in question shall be determinable, such taxes will be re-prorated between the time periods before and after Closing to reflect the actual amount of such taxes. Notwithstanding the preceding provisions, Section 8.7 shall govern with respect to all general, special and/or betterment assessments on the Property at the date of Closing. Notwithstanding the foregoing, there shall be no proration of real estate taxes to the extent that same are payable by ▇▇▇▇▇▇▇▇. In addition, annual tax reimbursement from Tenants (Publix & T.J. Maxx) will be prorated when collected and amounts due Pre Closing Partners will be distributed in cash within 30 days of receipt.
5.1.3 Percentage rent (i.e., that portion of the Project rent payable to the landlord by the tenant under a Space Lease which is a percentage of the amount of sales or of the dollar amount of sales), if any, payable under each Space Lease shall be prorated with respect to the lease year thereunder in which the Closing occurs on a per diem basis as and when collected. Any percentage rent collected by the Operating Partnership including any percentage rent which is delinquent and pertaining to (i) an entire lease year or accounting period of a tenant under a Space Lease which ends on a date prior to the Contribution Date date of Closing, and (ii) that portion of a lease year or accounting period of such tenant covering a period prior to the date of Closing where such lease year or accounting period begins prior to the date of Closing and ends thereafter shall in both cases (subject to Section 5.3.1) be distributed in cash to the Pre Closing Partners within 30 days of receipt.
5.1.4 Gas, water, electricity, heat, fuel, sewer and other than current taxes)utilities charges for which no billing based upon actual usage can be obtained with due diligence, and the governmental licenses, permits and inspection fees and operating expenses relating to the Shopping Center, shall be prorated on a per diem basis and on appropriate adjustment to the Adjustment Amount shall be made as set forth in 5.1.1.
5.1.5 Common area maintenance expenses and charges, including all expenses and charges payable by or to the Operating Partnership under or in connection with the REAs, shall be prorated. All common area expense payments made by each tenant and such charges paid under its Space Lease for the entire lease year during which the Closing occurs, and all special assessments levied on any portion of the Project prior common area maintenance payments to the Contribution DateOperating Partnership by other parties under the REA, including in each case end-of-year adjustments, if any, shall be paid by Owner or Contributor prorated in the following manner: Not later than three (3) days prior to the Contribution Date. Current real estate Closing, Pre Closing Partners shall deliver to Contributor a detailed reconciliation showing common area charges ("CAM Charges") billed to Shopping Center tenants (or each other party to a REA, hereafter a "REA Party") required to pay CAM Charges for 1997 and personal property taxes and assessments shall be prorated at the Closing effective as of through the Closing Date on and showing all CAM Charges incurred by the Operating Partnership for such period prior to Closing. In addition, Pre Closing Partners shall provide to Contributor invoices and other evidence documenting CAM Charges as may reasonably be requested by Contributor. Any excess CAM Charges (or estimates for same) received by the Operating Partnership prior to Closing over the amount of the Pre Closing CAM Charges payable by such tenants, as evidenced by the bills and computations delivery by the Operating Partnership at Closing, increase the Adjustment Amount. Any additional CAM Charges due from tenants for periods Pre Closing shall be billed to tenants (or a calendar year basisREA Party) as and when appropriate for annual reconciliation, understanding and shall be distributed to the Pre Closing Partners pro rata within thirty (30) days if , as and when received by the Operating Partnership after the Closing. The Operating Partnership shall not be required to institute any action or proceeding to collect any pre Closing CAM charges.
5.1.6 All brokerage and leasing commissions or other compensation due or accrued prior or subsequent to the date of Closing to any broker, agent, or other person in connection with the Property for brokerage or other services rendered to the Operating Partnership, or to any Pre Closing Partner or Post Closing Limited Partner of the Operating Partnership, in connection with the management and/or leasing of the Property prior to Closing shall increase the Adjustment Amount to the extent not paid by the Operating Partnership prior to Closing (it being agreed that real estate taxes payment of all of the foregoing shall be the sole responsibility of Pre Closing Partners). The foregoing shall not apply to bona fide third-party out-of-pocket expenses regarding Additional Leases as set forth in Section 4.1.2, or to those commission expenses set forth in Section 2.8 which shall be paid Post Closing by the Operating Partnership and shall not cause an increase or a decrease in the State Adjustment Amount.
5.1.7 All prepaid rentals, other prepaid payments, security deposits, electric, gas, sewer and water deposits deposited with the Operating Partnership by tenants, (including all accrued interest on all of Florida are payable the foregoing, unless the Operating Partnership is entitled to retain same and evidence that same has been retained in arrears. Such proration cash by the Operating Partnership is presented at Closing) under any Space Leases, license agreements or concession agreements relating to the Property, shall be set forth in Exhibit 17 to this Agreement and shall be an increase to the Adjustment Amount.
5.1.8 Pre Closing Partners shall be responsible for any charges, salaries, vacation pay or fringe benefits of employees of any Pre Closing Partners prior to or following the Closing and none of the foregoing shall be prorated.
5.2 All prorations (and the resultant increase or decrease to the Adjustment Amount) to be made under the foregoing provisions shall be made on the basis of a written statement or statements delivered to Contributor by Pre Closing Partners and approved by Contributor. In the amount of real estate and personal property taxes event any prorations, apportionments or computation shall prove to be incorrect for the current year if and any reason, then either Contributor or Pre Closing Partners shall be entitled to the extent an adjustment to correct same, provided that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable a written demand to the period such adjustment is made within six (6) months after the Contribution Date erroneous payment or computation was made. Any adjustment that results in the Pre Closing Partners being required to return cash shall be prorated made by withholding of distributions as provided in Section 2.8.3 and adjusted between the parties on a calendar year basis and any adjustment that requires Contributor to pay an additional amount to Pre Closing Partners shall be paid by Contributor or SCOLP, as the case may be.
within thirty (b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (9030) days after said demand.
5.3 All accounts receivable flowing from the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments Property shall be in accordance with the terms disposed of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).as follows:
Appears in 1 contract
Adjustments and Prorations. 6.1 (a) The following adjustments to the Unadjusted Purchase Price shall be made between the parties hereto as of 12:01 A.M., prevailing Central Time, on the Closing Date (as hereinafter defined). Not less than two business days prior to the Closing Date, Seller shall provide to Purchaser such information and verification reasonably necessary to support the adjustments and prorations under this Section 1.4. The following adjustments and prorations shall be made at based on the actual number of days in the applicable period.
(i) Real estate, franchise or other taxes, impact fees and assessments as of the Closing between SCOLPDate in accordance with the custom applicable in the city, Owner town or county in which the Real Property is situated, including assessments payable pursuant to that certain Building Operating Agreement, that certain Lakeshore East Declaration and Contributorthat certain Special Assessment payable to the City of Chicago under Warrant Number 62456, each of which will be more particularly identified in the Commitment (as hereinafter defined). The adjustments and prorations If any taxes, impact fees or assessments are not available on the Closing Date, then proration will be made by on the basis of amounts assessed in the previous year, with a subsequent cash payment adjustment of such proration to be made between Seller and shall not be an adjustment Purchaser, if necessary, when actual figures are available. Notwithstanding any provision to the Units to be issued at Closing.
(a) Real contrary contained herein, Seller and Purchaser acknowledge that the general real estate taxes and personal property special assessments for the Real Property for the year in which the Closing occurs (and for prior years) shall be assessed together with the general real estate taxes which are a lien and special assessments for the balance of the Project. The prorations of real estate taxes and special assessments determined at Closing pursuant to this Subsection 1.4(a)(i) will be based upon the allocations provided for in the Building Operating Agreement in respect of the most recent ascertainable tax ▇▇▇▇(s) for the Project. The initiation, withdrawal, settlement or levied compromise of any protest or reduction proceeding, affecting the real estate taxes or assessments assessed against any portion of the Project or the Building prior to the Contribution Date Real Property components being separately taxed shall be controlled by Seller (other than current taxesor Aqua at LSE, as applicable). Any net refund or credit (i.e., after deducting reasonable attorneys’ fees and all special assessments levied on expenses in obtaining such refunds or credits) attributable to any portion of the Project year prior to the Contribution year in which the Closing occurs shall belong to and be the property of Seller and all net refunds or credits received after Closing and attributable to the year in which the Closing occurs shall be reasonably apportioned between Seller and Purchaser in the same method as prorations are calculated pursuant to this Section 1.4(a)(i);
(ii) Rental payments, common area maintenance charge payments, tax payments and other receipts in respect of the Real Property actually received for the month or other period in which the Closing occurs, as of the Closing Date. If at the time of Closing there are past-due rents or other charges owing from any tenant of the Real Property, then, upon receipt thereof, Seller shall be entitled to all of such funds from such tenant to the Closing Date. The first rents and charges collected will be applied first to rents that became due and payable after Closing, and second, to those that were due and payable prior to Closing, in reverse order of maturity;
(iii) Except to extent utilities are paid directly by Tenants, Seller shall obtain or cause the Company to obtain meter readings on all utilities as of the Closing Date, and if such readings are obtained, then Purchaser shall receive a credit for amounts due as of the Closing Date. Any utility deposits shall be paid by Owner credited to Seller. If Seller is unable to obtain or Contributor prior cause the Company to obtain meter readings as of the Contribution Closing Date. Current real estate and personal property taxes and assessments , then utilities shall be prorated at the Closing effective Date based upon the most-recent utility bills;
(iv) In respect of any Tenant Lease that provides for the payment of additional rent based upon a percentage of the tenant’s gross sales during a specified annual or other period (such additional rent is referred to herein as “Percentage Rent”), if the Closing shall occur prior to the time when any such Percentage Rent is payable, then such Percentage Rent for the applicable accounting period in which the Closing occurs shall be apportioned subsequent to the Closing promptly after the collection thereof;
(v) Any deposits then held under Tenant Leases, together with accrued interest thereon wherever interest is provided for in such Tenant Leases or by applicable Law;
(vi) Any other operating expenses of the Real Property, including permits, licenses or other prepaid expenses (e.g., any amounts paid or payable under Contracts as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the Date); and
(vii) The aggregate amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase all credits in respect of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid all apartment units not in Rent Ready Condition as contemplated by Contributor or SCOLP, as the case may beSection 7.6.
(b) The amount of all unpaid water and other utility Within 90 days after the final bills for the Project which are not directly billed to the tenants any prorated item become available, Seller and Purchaser shall make a final adjustment and reconciliation of the Project, and all other operating and other expenses incurred with respect prorations made pursuant to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Datethis Agreement.
(c) Charges under Project Contracts On or before the Closing Date, Seller shall pay: (as defined belowi) attributable the premium for the Owner’s Title Policy; (ii) costs and expenses for the Survey; (iii) any State and County transfer, excise, document stamps, sales and similar taxes applicable to the period prior transactions contemplated hereby and Seller’s ‘CTA’ portion of City of Chicago transfer tax; (iv) one-half of any escrow fee, including any “New York Style” closing fee; (v) costs of tax certificates, if any; (vi) Seller’s attorneys’ fees; (vii) costs to the Contribution Date shall discharge or bond around Monetary Encumbrances; and (viii) other expenses stipulated to be paid by Owner Seller under other provisions of this Agreement. On or Contributor prior before the Closing Date, Purchaser shall pay: (A) the premium for any endorsements to the Contribution Date, or, if not paidOwner’s Title Policy, the amount due shall be reserved in cash within Excess Premium (as hereinafter defined) for the Owner as Owner’s Title Policy, and any cost related to a lender’s title insurance policy; (B) Purchaser’s portion of the Contribution Date. Prepaid charges under Project Contracts attributable City of Chicago transfer, excise, document stamps, sales and similar taxes applicable to the period after and transactions contemplated hereby; (C) one-half of any escrow fee, including the Contribution Date shall any “New York Style” closing fee; (D) Purchaser’s attorneys’ fees; (E) recording fees (other than fees for documents to terminate or release any Monetary Encumbrances or to cure any title encumbrances); (F) other expenses stipulated to be paid by SCOLP Purchaser under other provisions of this Agreement; and (G) the cost of its due diligence and all fees and expenses in connection with the Acquisition Financing (as hereinafter defined) that are incurred by Purchaser, including any commission due to Contributor on Broker (as hereinafter defined) to the Contribution Dateextent that Purchaser engages Broker and obtains the Acquisition Financing from a lender procured by Broker. At Purchaser’s request, Seller has agreed to have Chicago Title Insurance Company (the “Title Company”) issue the Owner’s Title Policy (and the loan policy) in connection with the transactions contemplated by this Agreement; provided that Purchaser agrees to pay the amount (the “Excess Premium”) by which the premium charged by the Title Company for the Owner’s Title Policy exceeds the premium that would have been charged by Escrow Agent for the Owner’s Title Policy, such amount currently estimated at $30,000. The parties further acknowledge and agree that Escrow Agent, as title agent for Old Republic, will provide any required reinsurance at Seller’s cost.
(d) All rental If the amount of loan proceeds received from the Acquisition Financing at the Closing is more than $100,000,000, the interest rate is fixed at an amount less than 3.5% for a minimum of the initial five years of the Acquisition Financing, with interest-only payable during the entire term of the Acquisition Financing and other revenues collected by Owner up is non-recourse to the Contribution Date which are allocable Company except for customary non-recourse carve-outs (collectively, the “Specified Terms”), then the Unadjusted Purchase Price shall be increased by $1,000,000. Notwithstanding the foregoing, if Seller has delivered or caused to be delivered to Purchaser a term sheet from a reputable lender evidencing such lender’s willingness to make a loan to the period prior Company or Purchaser on the Specified Terms, and Seller and Purchaser determine in their reasonable discretion that such lender could reasonably be expected to perform its obligations under such term sheet (assuming the Contribution Datesatisfaction by the Company or Purchaser, including without limit pass-through and pass-on chargesas applicable, shall become a part of the disbursement from Owner conditions therein requiring the performance of the Company or Purchaser, as applicable), then the Unadjusted Purchase Price shall be increased by $1,000,000 notwithstanding an election by Purchaser not to pursue the Holding Company (and then from Acquisition Financing with such lender or on the Holding Company to Contributor) made pursuant to Section 6.2 belowSpecified Terms.
(e) Prepaid revenue received by the Owner attributable Notwithstanding any provision of this Agreement to the period after and including contrary, in lieu of Seller providing a real estate tax proration credit to Purchaser at Closing, Aqua at LSE shall deposit the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues Real Estate Tax Funds (the “Rents”as hereinafter defined) into a segregated escrow account with Escrow Agent at Closing for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as payment of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing real estate taxes with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit Real Property for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after ClosingDate, they shall remain the property of the Owner and/or SCOLPsuch Real Estate Tax Funds to be held by Escrow Agent pursuant to a mutually acceptable real estate tax escrow and reproration agreement to be entered into by Aqua at LSE, Purchaser and shall not be paid to or distributed to the ContributorEscrow Company at Closing (“Real Estate Tax Escrow Agreement”). The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date “Real Estate Tax Funds” shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An an amount equal to all expenses the sum of (i) the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project prorated amount for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment second installment of employment 2009 real estate taxes with respect thereto, shall be to the Real Property as calculated in accordance with Section 1.4(a)(i) (unless the final 2009 tax ▇▇▇▇ has otherwise been paid by Owner Aqua at LSE on or prior to the Contribution Closing Date, orin which event Aqua at LSE shall deposit only the sum referenced in clause (ii) that follows) and (ii) the prorated amount for 2010 real estate taxes for the period from January 1, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior 2010 to the Contribution Closing Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project Real Property as calculated in accordance with Section 1.4(a)(i) (“Aqua’s Tax Account”). Aqua at LSE shall be fully paid direct the investment of, and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash interest earned on, Aqua’s Tax Account. All escrow fees charged by Escrow Agent shall be shared equally by Aqua at LSE and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any Purchaser and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunderpaid at Closing. The Owner Real Estate Tax Escrow Agreement shall not distribute any provide, among other rightthings, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).that:
Appears in 1 contract
Sources: Membership Interests Purchase Agreement (Behringer Harvard Multifamily Reit I Inc)
Adjustments and Prorations. 6.1 The At Closing, the following adjustments and prorations items shall be made at the Closing adjusted or prorated between SCOLP, Owner Seller and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.Purchaser:
(a) Real estate Ad valorem taxes and personal property taxes which are a lien upon or levied against any portion of for the Project prior to Property for the Contribution Date (other than then current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments calendar year shall be prorated at the Closing effective in cash as of the Closing Date based on a current appraised values. Seller’s pro rata portion of such taxes shall be based upon taxes actually assessed for the then current calendar year basisor, understanding that real estate if for any reason such taxes in for the State of Florida are payable in arrears. Such Property have not been actually assessed, such proration shall be made on the basis of the amount of real estate and personal property taxes for the based upon current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated appraised values and adjusted between the parties on a calendar year basis and when exact amounts are available. All special taxes or assessments approved or assessed prior to the Closing Date shall be paid by Contributor Seller. If Seller or SCOLP, Seller’s predecessors in title have claimed any partial or total exemption from taxation of the Property based on agricultural or open space use or any other use that could result in tax on any of the Property for years prior to the Closing Date which become due at or after Closing as the case may be.result of any changes in land usage or ownership or otherwise (“Rollback Taxes”), Purchaser shall assume payment of the Rollback Taxes, and no credit therefor shall be awarded against the Purchase Price. Obligations imposed by this paragraph shall survive
(b) The amount Seller agrees to pay at closing: (i) one-half of all unpaid water and other utility bills customary escrow fees generally charged by the Title Company; (ii) the premium for the Project which are not directly billed standard Owner’s Title Policy; (iii) any costs for recording fees; (iv) Seller’s own attorney fees; (v) to Purchaser up to $7,000 as reimbursement for the tenants cost of the Project, Survey; and (vi) any and all other operating costs, expense and other expenses incurred payments associated with respect to the Project and Ownerany mortgage indebtedness, and relating to the period prior to the Contribution Dateprepayment fees, shall be paid by Owner or Contributor on or prior to the Contribution Date orlender consent fees, if not paidlender counsel fees, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Dateetc.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute agrees to pay: (i) one-half of all customary escrow fees generally charged by the Title Company; (ii) the premium of any other right, claim, cause of action or asset after endorsements to the Effective Date of this AgreementOwner’s Title Policy; (iii) all costs and expenses relating to financing for the Property; and (iv) Purchaser’s own attorney’s fees.
6.3 If within ninety (90d) days after The agreements as to prorations and adjustments in this Section shall survive the Closing either SCOLP or Contributor discovers Closing. In the event that, subsequent to the Closing, any inaccuracies or errors in adjustments made at the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2this Section are determined by the Title Company to be erroneous, such then either party hereto who is entitled to additional monies shall notify invoice the other party of for such inaccuracy or error by written notice including reasonable detail additional amounts as may be owing, and such amounts shall be paid within ten days from receipt of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)invoice.
Appears in 1 contract
Adjustments and Prorations. 6.1 The At Closing, the following adjustments and prorations items shall be made at the Closing adjusted or prorated between SCOLP, Owner Seller and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.Purchaser:
(a) Real estate Ad valorem taxes and personal property taxes which are a lien upon or levied against any portion of for the Project prior to Property for the Contribution Date (other than then current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments calendar year shall be prorated at the Closing effective in cash as of the Closing Date based on a current appraised values. Seller’s pro rata portion of such taxes shall be based upon taxes actually assessed for the then current calendar year basisor, understanding that real estate if for any reason such taxes in for the State of Florida are payable in arrears. Such Property have not been actually assessed, such proration shall be made on the basis of the amount of real estate and personal property taxes for the based upon current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated appraised values and adjusted between the parties on a calendar year basis and when exact amounts are available. All special taxes or assessments approved or assessed prior to the Closing Date shall be paid by Contributor Seller. If Seller or SCOLP, Seller’s predecessors in title have claimed any partial or total exemption from taxation of the Property based on agricultural or open space use or any other use that could result in tax on any of the Property for years prior to the Closing Date which become due at or after Closing as the case may be.result of any changes in land usage or ownership or otherwise (“Rollback Taxes”), Purchaser shall assume payment of the Rollback Taxes , and no credit therefor shall be awarded against the Purchase Price. Obligations imposed by this paragraph shall survive
(b) The amount Seller agrees to pay: (i) one-half of all unpaid water and other utility bills customary escrow fees generally charged by the Title Company; (ii) the premium for the Project which are not directly billed standard Owner’s Title Policy; (iii) any costs for recording fees; (iv) Seller’s own attorney fees; (v) to Purchaser up to $8,000 as reimbursement for the tenants of the Projectsurvey, if applicable; (vi) any and all other operating costs, expense and other expenses incurred payments associated with respect to the Project and Ownerany mortgage indebtedness, and relating to the period prior to the Contribution Dateprepayment fees, shall be paid by Owner or Contributor on or prior to the Contribution Date orlender consent fees, if not paidlender counsel fees, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Dateetc.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute agrees to pay: (i) one-half of all customary escrow fees generally charged by the Title Company; (ii) the premium of any other right, claim, cause of action or asset after endoresements to the Effective Date of this AgreementOwner’s Title Policy; (iii) Purchaser’s own attorney’s fees.
6.3 If within ninety (90d) days after The agreements as to prorations and adjustments in this Section shall survive the Closing either SCOLP or Contributor discovers Closing. In the event that, subsequent to the Closing, any inaccuracies or errors in adjustments made at the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2this Section are determined by the Title Company to be erroneous, such then either party hereto who is entitled to additional monies shall notify invoice the other party of for such inaccuracy or error by written notice including reasonable detail additional amounts as may be owing, and such amounts shall be paid within ten days from receipt of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)invoice.
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations Purchase Price shall be made adjusted at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.as follows:
(a) Real estate taxes The Purchase Price shall be increased or decreased with respect to ACEC's current assets and personal property taxes which are a lien upon or levied against any portion of the Project current liabilities, as follows: Seller shall deliver to Buyer, not less than ten (10) days prior to the Contribution Date Closing Date, a certificate signed by or on behalf of Seller (other than current taxesthe "Pre-Closing Certificate"), and all special assessments levied on any portion together with such supporting documentation as Buyer may reasonably request, which Pre-Closing Certificate shall specify Seller's good faith estimate of the Project prior to amount of the Contribution Datecurrent assets and current liabilities of ACEC as such items would be reflected in the current assets and the current liability section of a balance sheet prepared, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date, in accordance with GAAP. Notwithstanding anything else contained herein, for purposes of making the calculations under this Section 3.3(a), (i) current assets shall not include (1) assets from which ACEC will not derive a benefit subsequent to the Closing Date on a calendar year basisor (2) any receivables from Seller or any other Affiliate of ACEC or Seller; (ii) without limiting the applicability of GAAP with respect to other items, understanding that real estate taxes current assets shall include (1) only an amount for ACEC's subscriber accounts receivable for services rendered by ACEC prior to the Closing Date, as determined in the State of Florida are payable in arrears. Such proration shall be made on the basis accordance with GAAP, equal to (a) 98% of the face amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements thereforall subscriber receivables which, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion as of the Project Effective Time, are not more than sixty (60) days past due from the first day of the respective Monthly Billing Period to which a bill ▇▇▇ates, and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The zero percent of the face amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants subscriber receivables which, as of the ProjectEffective Time, and all other operating and other expenses incurred are more than sixty (60) days past due from the first day of the respective Monthly Billing Period to which a bill ▇▇▇ates, excepting from every such past due determination with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
foregoing clauses (ca) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (yb) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP charges (other than late charges) as do not exceed $5.00 per subscriber and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).late charges;
Appears in 1 contract
Sources: Membership Purchase Agreement (Charter Communications Holdings Capital Corp)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and (if a lien on the Property) personal property taxes which are a lien upon taxes, fire district (if any) taxes, water and sewer bills and any other costs or levied against any portion of the Project prior expenses allocable to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments parties hereto shall be prorated at the Closing effective as of the Closing Date on the basis of a calendar year basis365-day year, understanding except that real estate taxes in if any amount to be prorated covers a period of less than a year, the State of Florida are payable in arrears. Such proration as to such amount shall be made as of the Closing on the basis of the period so covered. Seller shall, at the Closing, pay a pro rata share of all items so prorated to and including the day of the Closing, and Buyer shall pay or assume the balance thereof. Seller shall pay all utility charges on the Property for the period up to Closing. The net amount of real estate any adjustments shall be added to or subtracted from the Purchase Price, as applicable. Any unpaid betterment or improvement assessments (the “Assessments”) constituting a lien against the Premises shall be paid in the following manner: (i) Seller shall pay for all Assessments due and personal property taxes for the current year if and payable prior to the extent that calendar year 2003; (ii) Assessments due and payable during the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax calendar year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date 2003 shall be prorated as of the Closing Date; and adjusted between (iii) Buyer shall pay for all Assessments due and payable in the parties on a calendar year basis years 2004 and shall be paid by Contributor or SCOLP, as the case may bebeyond.
(b) Rents under the Leases shall be prorated as of the Closing based on the applicable period relating to such rents, except that no proration shall be made for rents delinquent as of the Closing (hereinafter called the “Delinquent Rents”). Delinquent Rents shall be any rents that are more than thirty (30) days past due. The amount of all unpaid water and other utility bills for the Project balance remaining from any security deposits or prepaid rents which are not directly billed held by Seller after deductions made by Seller in accordance with the Leases shall be transferred to the tenants of the Project, Buyer. Buyer shall assume all liability and all other operating and other expenses incurred with respect to the Project and Owner, and obligations relating to the period prior to the Contribution Datesuch security deposits and prepaid rents and shall indemnify and hold Seller harmless from all claims, liabilities and obligations relating thereto. Delinquent Rents, if any, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner similarly prorated as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after Closing, and including the Contribution Date Seller’s share thereof shall be paid remitted to Seller promptly when, as and if received by SCOLP Buyer after deduction of reasonable third party costs incurred by Buyer to Contributor on the Contribution Date.
(d) All rental and collect such Delinquent Rents; provided, however, nothing herein contained shall operate to require Buyer to institute any lawsuit or other revenues collection procedures to collect any Delinquent Rents. Amounts collected by Owner up Buyer from tenants owing Delinquent Rents shall be applied first to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) rent for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such paymentsoccurs, then current rents owed by such tenant and finally to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to Delinquent Rents owed by such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing tenant in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to inverse order in which the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payableDelinquent Rents arose.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Purchase and Sale Agreement (BNS Co)
Adjustments and Prorations. 6.1 The following adjustments Adjustments and prorations with respect to the Property shall be made at computed and determined between the parties as of 12:01 a.m. Pacific Time on the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.Date as follows:
(a) Real General real estate taxes taxes, special assessments and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made based on the basis of then current taxes (if known, based on final tax bills for such period, and if not known, based on the amount of most recent ascertainable taxes) and the special assessments due and owing prior to Closing, and Seller or Purchaser shall receive a credit at Closing, as appropriate. Without affecting the obligations set forth in this Section 12, the prorations for real estate and personal property taxes shall be equitably prorated on a “net” basis (i.e., adjusted for all tenants’ liabilities and payments of additional rent under the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed Leases for the current tax year plus an estimated increase proportionate share of 5%. Real estate taxes and personal property assessments if any, for such items). If final taxes levied against any portion or special assessments are not known as of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between Closing, the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may beagree to reprorate when such amounts become known.
(b) The amount of all unpaid water and other utility bills for All amounts payable, owing or incurred in connection with the Project which are not directly billed Property under the Contracts to be retained by the tenants Company shall be prorated as of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Closing Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, orAll utility deposits, if not paidany, the amount due may be withdrawn by and refunded to Seller, and Purchaser shall be reserved in cash within the Owner as make replacement deposits on behalf of the Contribution Date. Prepaid charges under Project Contracts attributable to Company for utilities as may be required by the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Daterespective utilities involved.
(d) All rental and other revenues collected by Owner up to the Contribution Date which utility charges that are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), separately metered shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing Seller shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also obtain a final billing therefor and pay or provide Contributor with a credit any amounts owing therein for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected and Purchaser shall pay any amounts owing for the period on and after Closingthe Closing Date. To the extent that utility bills cannot be handled in the foregoing manner, they shall remain the property be prorated as of the Owner and/or SCOLPClosing Date based on the most recent bills available and reprorated when such final bills become known.
(e) Seller and Purchaser agree that as soon as reasonably possible after the close of the calendar year of the Closing, the parties shall undertake a final master, taxes and other pass-throughs. Such reconciliation shall not be paid to or distributed final. For purposes hereof, Seller and Purchaser shall each prepare tenant reconciliations for their respective applicable periods of ownership of the Interests. Purchaser shall transmit such information to the Contributor. The Owner tenants.
(f) Unless provided otherwise hereinabove, such other items as are customarily prorated in a purchase and sale of the type contemplated hereunder shall not distribute or assign to be prorated as of the Contributor and the Contributor Closing Date.
(g) All insurance policies shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going be terminated as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date there shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes no proration with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closingthese items.
(h) All costs and expenses incurred by Owner, Each of the Holding Company or Contributor prior to provisions of this Section 12 shall survive the Contribution Date in connection with Closing until the transactions contemplated herein and the performance later of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount one (1) year from the date of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
Closing or (jii) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to real estate taxes three (3) months after the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all issuance of the cash and cash equivalent assets held by Owner as of final tax bills for the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after year in which the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)occurs.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (MJ Holdings, Inc.)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment In addition to the Units Purchase Price payable pursuant to Article 3 of this Agreement and the increases, decreases and adjustments to the Cash Portion of the Purchase Price provided for elsewhere in this Agreement, Purchaser and Seller shall, on an accrual basis, also make the adjustments thereto provided for in this Article 13, which (except as otherwise expressly provided) are to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred apportioned with respect to the Project Property and Owner, and relating to the Ground Lease Property as of the Cut-off Time (such that the period prior to preceding the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Closing Date shall be paid by Owner or Contributor prior to for the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as account of the Contribution Date. Prepaid charges under Project Contracts attributable to Seller and the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be for the responsibility account of Owner after Purchaser) and, to the extent possible, settled at Closing:
(a) Hotel Revenues and Receivables. All Hotel Revenues and the Receivables shall be prorated as of the Cut-off Time; provided, however, that Hotel Revenues and the Receivables with respect to Hotel Revenues arising from the letting of Hotel guest rooms for the night immediately preceding the Closing Date shall be shared equally by Seller and Purchaser. Purchaser shall not be charged obligated to Contributorpay Seller for any of the Receivables. Sums received Following the Closing, Seller shall have the right to collect the Receivables. Purchaser shall have no obligation to pursue collection of the Receivables, but, if Purchaser should receive any payment on account of such litigation shall also remain the property any of the Owner and Receivables at any time following the Closing, Purchaser shall not be paid promptly remit such payment to Seller. If Seller should receive any payment on account of any Hotel Revenue relating to periods of time after the Closing, Seller shall promptly remit such payment to Purchaser. Purchaser will, subject to the Contributor provisions of Section 13.1(b) below, honor, for its account, the terms and rates of all the Bookings entered into by Seller or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid Manager prior to the Contribution Date and Closing Date, but confirmed for which Owner will benefit periods of time after the Contribution Closing Date. Any down payments on such confirmed Bookings and other advance payments made with respect to Bookings for dates on or after the Closing Date shall will be disbursed or credited to Contributor Purchaser at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLPPurchasers and Contributors computed to, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall but not be an adjustment to including, the Units to be issued at ClosingClosing Date.
(a) Real estate taxes and personal property taxes which are a lien Lien upon or levied against any portion of the any Project on or prior to the Contribution Date (other than current taxes)Closing Date, and all special assessments levied on any portion of the Project prior to the Contribution Date, Closing Date shall be paid by Owner or Contributor prior to the Contribution DateContributors. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basisFurther, understanding that real estate all taxes in the State nature of Florida are payable rollback or similar taxes charged, assessed or levied based on the prior use or any change in arrears. Such proration use of the Land or Improvements shall be made on the basis obligation of the amount of Contributors. All current real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes (the “Current Taxes”) levied against any portion of the any Project and applicable with respect to the period after tax year in which the Contribution Date Closing occurs, which Current Taxes 2368068.4 are payable in arrears, shall be prorated and adjusted between the parties on a calendar such that Contributors are responsible for that portion of the Current Taxes allocable to the period from the beginning of such tax year basis to the Closing Date, and shall be paid Purchasers are responsible for that portion of the Current Taxes allocable to the period from the Closing Date through the end of the tax year. If the tax bills for the Current Taxes have not been issued by Contributor or SCOLPthe Closing Date, as Contributors and Purchasers agree to use 105% of the case may beamount of the taxes for the year immediately preceding the Closing for the purpose of computing the prorations under this Section 6.1(a).
(b) The amount of all unpaid water and other utility bills for the Project Projects which are not directly billed to the tenants of the ProjectProjects, and all other operating and other expenses incurred with respect to the Project Projects and OwnerContributors, and relating to the period prior to the Contribution Closing Date, shall be paid by Owner or Contributor Contributors on or prior to the Contribution Closing Date or, if not paid, an amount equal to such unpaid expenses shall be part shall be credited to Purchasers as of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Closing Date.
(c) Charges under Assumed Project Contracts (as defined in Section 7.1(h) below) attributable to the period prior to the Contribution Closing Date shall be paid by Owner or Contributor Contributors prior to the Contribution Closing Date, or, if not paid, the amount due shall be reserved in cash within the Owner credited to Purchasers as of the Contribution Closing Date. Prepaid All charges under the Non-Assumed Project Contracts (as defined in Section 7.1(h) below) shall be paid by Contributors, whether such charges are attributable to the period prior to the Closing Date or the period after the Closing Date. Any revenue sharing agreements or upfront fees with respect to Assumed Project Contracts which have been received by any Contributor and including are attributable to periods after the Contribution Closing Date shall be paid by SCOLP to prorated between such Contributor on the Contribution Dateand Purchasers.
(d) All rental and other revenues collected by Owner Contributors up to the Contribution Closing Date which are allocable to the period prior to the Contribution Date, including without limit pass-through from and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition by Contributors to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to ClosingPurchasers. To the extent any Rents Purchaser collects, within thirty (30) days after the Closing, any rental or revenues allocable to the period prior to the Closing Date, such Purchaser shall pay the same to Contributors; provided, however, Purchasers shall have no obligation whatsoever for the collection of such rentals or revenues, all rentals and revenues collected subsequent to the Closing Date are collected shall always, in the first instance, be applied first to the most current rentals and revenues, if any, then due under the Tenant Leases or otherwise, and Purchasers shall have no obligation to remit to Contributors any delinquent rents more than thirty (30) days past due received by Purchasers after Closing. Further, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor Contributors shall not have the right to seek collection, through litigation or otherwise, of unpaid Rentsrent from any person while they remain a tenant of any Project, nor shall Contributors institute any eviction or lockout proceedings against any residents to recover delinquent rents. Any eviction actions which are on-going Purchasers shall have no obligation to remit to Contributors any such delinquent rents collected later than thirty (30) days after the Closing.
(e) An amount equal to all security and other deposits described in the Future Reservations Schedule, together with any interest accrued thereon (to the extent applicable 2368068.4 law requires interest to be paid by the holder of such deposits) shall be credited to Purchasers as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to prorationDate.
(f) An amount equal to all operating expenses of the Project Projects which were paid prior to the Contribution Closing Date and for which Owner Purchasers will benefit after the Contribution Closing Date shall be disbursed or credited to Contributor Contributors at the Closing.
(g) All compensationPurchasers agree to, fringe benefits and will at the Closing, assume and agree to pay, discharge and perform when lawfully due the Assumed Liabilities (as defined below) as the same shall exist at the Closing Date. “Assumed Liabilities” means the liabilities, commitments and other amounts due obligations of Contributors arising after the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date Closing in connection with the transactions contemplated herein Assumed Leases and Contracts (and expressly excluding any liabilities, commitments and other obligations to the performance extent arising out of its obligations under any breach prior to the Closing). Anything to the contrary in this Section 6.1(g) notwithstanding, the Assumed Liabilities shall not include the Excluded Liabilities (as defined below) and Purchasers shall not be the successor to Contributors and Contributors hereby acknowledge and agree that, pursuant to the terms and provisions of this Agreement, neither Purchasers nor any of their affiliates shall assume or become liable to pay, perform or discharge any liability whatsoever of any Contributor, whether or not relating to the Ancillary Business Assets or the Ancillary Businesses, whether known or unknown, fixed or contingent, accrued or unaccrued, except for and to the extent that those liabilities are expressly included in the definition of Assumed Liabilities. “Excluded Liabilities” means all Liabilities (as defined below) of the Contributors (other than the Assumed Liabilities), including, without limitation: (i) the Contributors’ obligations and any Liabilities arising under this Agreement, attorney (ii) any Liabilities of the Contributors for taxes that arise in any period (or portion thereof) that ends on or before the Closing Date, (iii) any Liabilities of the Contributors for any transfer, sales or other taxes, fees or levies (including motor vehicle sales taxes) imposed by any governmental authority on or arising out of the sale of the Projects pursuant hereto; and other professional fees(iv) any Liabilities in respect of any former employee, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company current employee or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged toindependent contractor, or the responsibility beneficiaries or dependents of SCOLP.
(i) The amount of all escrows and reserves required any former employee, current employee or independent contractor, that may be payable under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows Assumed Leases and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event Contracts. “Liabilities” means any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, liabilities and obligations, chargeswhether known or unknown, liabilities and liens with respect to the Project shall be fully paid and satisfied asserted or credited unasserted, liquidated or paid to SCOLP on the Contribution Dateunliquidated, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On accrued or prior to the Contribution Datefixed, Contributor (directly absolute or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Datecontingent, after deduction for matured or unmatured or determined or determinable, including those arising under any and all costslaw, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP governmental order and those arising under any contract, agreement, arrangement, commitment or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).undertaking
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments Adjustments and prorations with respect to the Property shall be made at computed and determined between the parties as of 12:01 a.m. on the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.Date as follows:
(a) Real General real estate taxes taxes, special assessments and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made based on the basis of then current taxes (if known, based on final tax bills for such period, and if not known, based on the amount of most recent ascertainable taxes) and the special assessments due and owing prior to Closing, and Seller or Purchaser shall receive a credit at Closing, as appropriate. Without affecting the obligations set forth in this Section 14, the prorations for real estate and personal property taxes shall be equitably prorated on a "net" basis (i.e., adjusted for all tenants' liabilities and payments of additional rent under the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed Leases for the current tax year plus an estimated increase prorationate share of 5%. Real estate taxes and personal property assessments if any, for such items). If final taxes levied against any portion or special assessments are not known as of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between Closing, the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may beagree to reprorate when such amounts become known.
(b) The amount of all unpaid water All rents and other utility bills for the Project which are not directly billed to the sums receivable from tenants of the ProjectProperty, which were earned and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall Closing Date, will be paid retained by Owner or Contributor prior Seller to the Contribution Date, or, if not paid, extent that such rents have been collected on or before the amount due shall be reserved in cash within the Owner as of the Contribution Closing Date. Prepaid charges under Project Contracts Rents earned and attributable to the period after beginning on the Closing Date and including the Contribution Date shall thereafter will be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which Company by the tenants, or credited to Purchaser at Closing (if such rents are allocable received by the Company prior to the Closing Date). All payments from tenants, on account of rent or otherwise, received by Seller on behalf of the Company after the Closing Date, whether attributable to the period prior to or after the Contribution Closing Date, including without limit pass-through shall be deemed to be held in trust by Seller for Purchaser and pass-shall be promptly delivered to Purchaser by Seller for application as provided in this Section 14. All payments from tenants, on chargesaccount of rent or otherwise, received after the Closing Date by Purchaser on behalf of the Company and all amounts received from Seller by Purchaser pursuant to the immediately preceding sentence, shall become a part of be applied first to rent or other sums then due under the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner Leases attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such paymentsoccurs, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received period after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect Date on account of rents earned and attributable to such Rents. In addition period, and then to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount Seller on account of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable rents which were earned and attributable to the period prior to the Closing Date are collected after Closing, they Date. Any customary out-of-pocket costs incurred by Purchaser in collection of delinquent rentals shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed deducted by Purchaser prior to the Contributorpayment to Seller on account of delinquent rentals as provided herein. The Owner Purchaser shall cause the Company to ▇▇▇▇ tenants for delinquent rentals, but need not distribute or assign to the Contributor and the Contributor initiate legal proceedings. Seller shall not have the right to seek collectioncontact tenants to request payment of delinquent rentals after the Closing Date and institute legal proceedings to collect such delinquent rentals, through litigation or otherwise, of unpaid Rentsbut shall have no right to evict any tenant. Any eviction actions such enforcement or collection efforts by Seller shall be at Seller's sole expense.
(c) On the Closing Date, Seller shall either (i) deliver to the Company if not already held by it, in cash, or (ii) receive as a credit against the Purchase Price, an amount equal to all cash security deposits made by tenants occupying the Property which were paid to the Company by such tenants and which shall not have been applied by the Company or otherwise pursuant to the Leases, together with interest owing thereon pursuant to the applicable Lease, if any, and together with a listing (certified as true and correct by Seller) of the tenants to which such deposits and interest are onowing.
(d) All amounts payable, owing or incurred in connection with the Property under the Contracts to be retained by the Company shall be prorated as of the Closing Date.
(e) All utility deposits, if any, may be withdrawn by and refunded to Seller, and Purchaser shall make replacement deposits on behalf of the Company for utilities as may be required by the respective utilities involved.
(f) All utility charges that are not separately metered to tenants shall be prorated to the Closing Date and Seller shall obtain a final billing therefor and pay any amounts owing therein for the period prior to the Closing Date and Purchaser shall pay any amounts owing for the period on and after the Closing Date. To the extent that utility bills cannot be handled in the foregoing manner, they shall be prorated as of the Closing Date based on the most recent bills available and reprorated when such final bills become known.
(g) Purchaser shall pay all leasing commissions and tenant improvement costs payable with respect to Leases entered into after the date of this Agreement in accordance with the terms of Section 20(b) of this Agreement. If Seller has paid or caused the Company to pay such amounts prior to the Closing Date, Purchaser shall reimburse Seller for such payments at Closing. Seller shall pay all other leasing commissions and tenant improvement costs payable with respect to all other Leases except those referenced in the preceding sentence.
(h) Seller and Purchaser agree that as soon as reasonably possible after the close of the calendar year of the Property, the parties shall undertake a final master reconciliation of CAM, taxes and other pass-going throughs and additional rent (including without limitation, percentage rent) with respect to the Leases and the Property. Such reconciliation shall be final. For purposes hereof, Seller and Purchaser shall each prepare tenant reconciliations for their respective applicable periods of ownership of the Interests. Purchaser shall transmit such information to the tenants.
(i) Unless provided otherwise hereinabove, such other items as are customarily prorated in a purchase and sale of the type contemplated hereunder shall be prorated as of the Closing Date.
(j) All wages, salaries and benefits of the Retained Employees shall be apportioned between Purchaser and Seller.
(k) Notwithstanding anything in this Section 14 to the contrary, if any tenant under a Lease is obligated to pay any prorated item directly to the entity imposing same, such portion of the prorated item shall not be apportioned between Seller and Purchaser. If any item of income or expense set forth in this Section 14 is subject to final adjustment after Closing, then Seller and Purchaser shall make, and each shall be entitled to, an appropriate reproration to each such item promptly when accurate information becomes available, but in any event prior to one (1) year from the date of Closing. Any such reproration shall be paid promptly in cash to the party entitled thereto.
(l) All insurance policies and Seller's property manager's management agreement and listing agreement (if any) shall be terminated as of the Closing Date and there shall be no proration with respect to these items.
(m) Notwithstanding anything to the expense of any legal fees associated with such eviction actions incurred contrary contained herein, all cash and cash equivalents maintained by the Company on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of Seller, except as may be required to effect the Owner adjustments and shall not be paid to the Contributor or otherwise subject to prorationprorations required by this Section 14, and except as required by Article 8.
(fn) An amount equal to all expenses Each of the Project which were paid prior to provisions of this Section 14 shall survive the Contribution Date and for which Owner will benefit after Closing until the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees later of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount one (1) year from the date of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
Closing or (jii) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to real estate taxes three (3) months after the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all issuance of the cash and cash equivalent assets held by Owner as of final tax bills for the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after year in which the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)occurs.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Glimcher Realty Trust)
Adjustments and Prorations. 6.1 The following adjustments and prorations items shall be made at apportioned as of 11:59 PM of the day immediately preceding the Closing between SCOLPDate, Owner with Purchaser being deemed to be the owner of the Property during the entire day on the Closing Date and Contributor. The adjustments being entitled to receive all operating income of the Property, and prorations will be made by a cash payment and shall not be an adjustment being obligated to pay all operating expenses of the Property, with respect to the Units to be issued at Closing.Closing Date:
(aA) Real estate taxes and personal property taxes which are Seller shall give Purchaser a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current credit for real estate and personal property taxes and assessments shall be prorated at on the Closing effective Property which have accrued but are unpaid as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month year in which the Closing Date occurs (the “Closing MonthCurrent Tax Year”). If, and Rents not delinquent more than thirty days as of the Closing Date (Date, the actual tax bills for those residents which remain the year or years in occupancy at question are not available, real property taxes and assessment on the Project), Property shall be adjusted on the basis of 110% of the most recent ascertainable tax ▇▇▇▇. Such real estate taxes and assessments shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month per diem basis based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition Current Tax Year prior to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (which shall be allocated to Seller) and the number of days in the Current Tax Year on and after the Closing Date (which shall be allocated to Purchaser). Seller shall be responsible for those residents which remain real estate taxes and assessments on the Property payable in occupancy at respect to periods prior to the Project), based upon the likelihood of collecting such RentsCurrent Tax Year. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between Upon the Closing Date and subject to the date adjustment provided for above, Purchaser shall be responsible for real estate taxes and assessments on the Property payable in respect to the Current Tax Year and all periods after the Current Tax Year. The parties agree to re-prorate real estate taxes and assessments upon the issuance of the actual tax bills;
(B) All operating expenses (including all charges under Service Contracts and agreements assumed by Purchaser under the Seller’s Closing Documents). As to each service provider, operating expenses payable or paid to such service provider in respect to the billing period of such service provider in which is ninety the Closing Date occurs (the “Current Billing Period”), shall be prorated on a per diem basis based upon the number of days in the Current Billing Period prior to the Closing Date (which shall be allocated to Seller) and the number of days in the Current Billing Period on and after the Closing DateDate (which shall be allocated to Purchaser), first to and assuming that all charges are incurred uniformly during the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to ClosingCurrent Billing Period. Any payments received after the ninetieth day after Closing amounts which have been prepaid to Seller by a service provider or other contract party shall not be subject to pro rationprorated between Purchaser and Seller. Contributor Seller shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor Purchaser with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable such prepayment which is attributable to the period prior to term of such Service Contract which has not expired. If actual bills for the Current Billing Period are unavailable as of the Closing Date are collected Date, then such proration shall be made on an estimated basis based upon the most recently issued bills, subject to readjustment upon receipt of actual bills.
(C) Prepaid rentals and other tenant charges and Additional Rents for periods after Closing, they shall remain the property of the Owner and/or SCOLPCurrent Month, and any security deposits (including any portion thereof which may be designated as prepaid rent) made under the Parking Leases, shall not be paid to or distributed to credited against the ContributorPurchase Price. The Owner shall not distribute or assign to In addition, in the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going event that as of the Closing Date there shall exist any rebate, rental concession, free rent period, credit, setoff or rent reduction under or with respect to any Tenant Lease which extends to or beyond the Closing Date, then Seller shall pay Purchaser as of the Closing Date (and the expense prorations in favor of Purchaser hereunder shall include an amount equal to) the aggregate amount of the same applicable to any legal fees associated with such eviction actions incurred period or periods on and or after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to prorationDate.
(fD) An amount equal to all expenses of Utilities, including telephone, electricity, water and gas, shall be read on the Project which were paid prior Closing Date to the Contribution Date and extent reasonably feasible. In the event a meter reading is unavailable for which Owner will benefit after the Contribution Date any particular utility, such utility shall be disbursed or credited to Contributor at prorated in the Closingmanner provided in subparagraph (C) above.
(gE) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, Prepaid gas shall be paid by Owner on or prior credited to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash Seller at Closing.
(hF) All costs The prorations and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), payments shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit made on the Contribution Date shall be paid basis of a written statement approved by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows Purchaser and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) Seller. In the event any rental discounts, leasing incentives prorations or other credits, incentives or obligations have been provided apportionments made under this Article 8 shall prove to any of the occupants at the Project be incorrect for any reason, and the same have not been fully satisfied by Closing, SCOLP then any party shall be entitled to a credit or payment at Closing in an adjustment to correct the amount same. Any item which cannot be finally prorated because of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project unavailability of information shall be fully paid and satisfied or credited or paid to SCOLP tentatively prorated on the Contribution Datebasis of the best data then available and re-prorated when the information is available. Notwithstanding the foregoing, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) any re-proration shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Datemade, after deduction for any and all costsif at all, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) 90 days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues Date (except with respect to delinquent revenue taxes and the prorations assessments and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues orAdditional Rents, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to which case such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments re-proration shall be made within 30 days after the information necessary to perform such re-proration is available).
(G) Seller shall pay for title any transfer or document tax associated with this sale and title insurance premiums for the Title Policy plus extended coverage. Purchaser shall pay the premiums for the Title Endorsements. All closing escrow fees shall be divided equally between Seller and Purchaser.
(H) Except as provided in accordance with the terms Section 13.20 hereof, each party shall pay its own legal fees.
(I) This provisions of this Agreement, and the obligations of either party to pay any such amount Article 8 shall survive the Contribution Date. Prorations Closing and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)delivery of the Deed.
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLPSCOLP and Contributors, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall be computed to, but not be an adjustment to including, the Units to be issued at ClosingClosing Date.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the any Project prior to the Contribution Closing Date and which become delinquent prior to the Closing Date (other than current taxes), and all installments of special assessments levied on any portion of the any Project prior to the Contribution Closing Date and which become delinquent prior to the Closing Date, shall be paid by Owner or Contributor Contributors prior to the Contribution Closing Date. Current real estate taxes, current installments of special assessments and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the any Project and applicable to the period after the Contribution Closing Date shall be prorated and adjusted between the parties on a calendar year the due date basis of the taxing authority (it being agreed such taxes are payable in advance) and shall be paid by Contributor Contributors or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the ProjectProjects, and all other operating and other expenses incurred with respect to the Project and Owner, and Projects relating to the period prior to the Contribution Closing Date, shall be paid by Owner or Contributor Contributors on or prior to the Contribution Closing Date or, if not paid, as soon as possible after Closing following receipt of an amount equal invoice therefor. In the event water is submetered and billed to the tenants, then the company completing such unpaid expenses submetering shall be part continue to ▇▇▇▇ such tenants for the water services utilized through the date of Closing and shall remit all amounts received to the Contributors as and when received for periods through the Closing Date. In the event that SCOLP receives any payments from residents of the cash adjustment at Closing. The amount of all prepaid Projects which are payments for water and other utility bills for periods through the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Closing Date, SCOLP shall be paid by SCOLP promptly remit such amounts to Contributor on the Contribution DateContributors as and when received.
(c) Charges under Assumed Project Contracts (as defined in Section 7.1(e) below) attributable to the period prior to the Contribution Closing Date shall be paid by Owner or Contributor Contributors prior to the Contribution Closing Date, or, if not paid, the amount due shall be reserved in cash within the Owner credited to SCOLP as of the Contribution Closing Date. Prepaid All charges under the Non-Assumed Project Contracts (as defined in Section 7.1(e) below) shall be paid by Contributors, whether such charges are attributable to the period prior to the Closing Date or the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Closing Date.
(d) All prepaid rental and other revenues collected by Owner Contributors or the New Owners up to the Contribution Closing Date which are allocable to the period prior to the Contribution Date, including without limit pass-through from and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), shall be paid by Contributors to SCOLP. Current resident rents shall be prorated and Rents not delinquent more than thirty days adjusted as of the date of Closing Date based upon the actual number of days in the month of Closing with SCOLP being credited for rents on the date of Closing. All rental and other revenues actually collected by SCOLP attributable to rent due for such month of Closing and received by SCOLP within sixty (for those residents which remain in occupancy at 60) days following the Project)Closing Date, shall be prorated between Contributors and SCOLP based on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such monthmonth each owned the Project. SCOLP shall be paid or shall receive a credit for Except as provided in the pro rata share of the collected Rents received for the Closing Month. In addition preceding paragraph, to the foregoingextent SCOLP collects, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date within one hundred eighty (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days 180) after the Closing DateClosing, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay any rental or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents revenues allocable to the period prior to the Closing Date are collected after ClosingDate, they SCOLP shall remain pay the property of same to Contributors and SCOLP shall use its good faith efforts to collect all such rent or revenues allocable to the Owner and/or SCOLPperiod prior to the Closing Date, and but SCOLP shall not be paid required to commence litigation or distributed institute evictions with respect to such tenants; provided, however, and except as otherwise set forth above, SCOLP is assuming no obligation whatsoever for the collection of such rentals or revenues and all rentals and revenues collected subsequent to the Contributor. The Owner Closing Date shall not distribute or assign always, in the first instance, be applied first to the Contributor most current rentals and revenues, if any, then due under the Contributor Tenant Leases or otherwise. Further, Contributors shall not have the right to seek collection, through litigation or otherwise, of unpaid Rentsrent from any person while they remain a tenant of a Project, nor shall Contributors institute any eviction or lockout proceedings against any residents to recover delinquent rents. Any Contributors shall retain one hundred (100%) percent of the right to receive any past due rents with respect to residents who are no longer residents of the Projects. Following Closing, SCOLP shall assume any eviction actions which are on-going as of the date of Closing Date and the expense shall assume responsibility for payment of any legal fees associated with such eviction actions incurred on and after the Closing Date, and sums received by SCOLP as a result of such eviction actions shall first be applied to reimburse SCOLP and Contributors for legal fees incurred in connection with such actions and the balance of such amounts prorated between Contributors and SCOLP as provided above.
(e) An amount equal to $67,450 to be applied to rental concessions attributable to periods after the Closing Date and an amount equal to all security and other refundable deposits described in the Rent Roll shall be credited to SCOLP at the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to prorationClosing.
(f) An amount equal to all expenses of the Project Projects which were paid prior to the Contribution Closing Date and for which Owner SCOLP will benefit after the Contribution Closing Date including, without limitation, annual license and permit fees, shall be disbursed or credited to Contributor Contributors at the Closing, and an amount equal to all expenses of the Projects which were incurred prior to the Closing Date and are due or paid after the Closing Date shall be credited to SCOLP at the Closing and SCOLP shall cause all such expenses to be paid.
(g) All compensation, fringe benefits and other amounts due the employees of any Contributor, any New Owner or the any manager of the any Project for the period prior to the Contribution Closing Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner Contributors on or prior to the Contribution Closing Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closingor as soon as reasonably possible following the Closing Date.
(h) All Except as otherwise expressly set forth in the Agreement, all costs and expenses incurred by Owner, the Holding Company any Contributor or Contributor any New Owner prior to the Contribution Closing Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, fees and the costs and expenses payable by Owner, Holding Company any Contributor or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor)any New Owner hereunder, shall be paid by Contributor Contributors and shall not be charged to, or the responsibility of any New Owner or SCOLP.
(i) The amount of all escrows and reserves required under All interest accrued for the Mortgage Documents which are on deposit on Assumed Debt through the Contribution Closing Date shall be paid by SCOLP to the Contributor Contributors who are the borrowers under the Assumed Debt on or before the Contribution Date Closing Date, or, if not paid, an amount equal to the entire amount of such escrows and reserves accrued interest shall be credited to Contributor in connection with SCOLP as of the cash adjustment at ClosingClosing Date.
(j) In All escrows under the Assumed Debt and the Mortgage Documents that were funded by the Contributors who are the borrowers under the Assumed Debt which will remain in place after the Closing for the benefit of SCOLP and the New Owners and shall be credited by SCOLP to the Contributors at the Closing.
(k) SCOLP acknowledges and agrees that Contributors may have entered into certain cable agreements prior to the date hereof and in the event Contributors received any rental discounts, leasing incentives door fees or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens lump sum payments with respect to the Project such cable agreements, such amounts shall be fully paid Contributors’ sole and satisfied exclusive property and shall not be prorated and in no event shall SCOLP receive a credit with respect to any such door fees or credited or paid lump sum payments.
(l) SCOLP shall reimburse Contributors for out-of-pocket costs and expenses incurred in connection with Contributors’ home relocation program for each of the thirteen (13) homes identified on Schedule 6.1(l) in an amount not to exceed Eleven Thousand and 00/100 ($11,000.00) Dollars per manufactured home and for any other homes relocated under Contributors’ relocation program following the date hereof, provided SCOLP on has approved any such additional homes to be relocated as part of Contributors’ relocation program. SCOLP shall reimburse Contributors for $67,450 as a partial credit for cancellation fees incurred by the Contribution Date, except only Contributors in terminating the Existing Mortgage and the lien for taxes not yet due and payableNon-Assumed Project Contracts.
6.2 On or prior to the Contribution Closing Date, and except as otherwise set forth in Section 7.1(k) hereof, each Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from the New Owner it owns in an amount equal to all of the cash and cash equivalent assets held by such New Owner as of the Contribution DateClosing Date (except for the Cash Balances (as defined below) held within the Working Capital Accounts (as defined below)), after deduction for any all accounts receivables and all costsnotes receivable, expenses it being acknowledged and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall agreed that such items are excluded and not distribute any other right, claim, cause of action or asset after the Effective Date part of this Agreementtransaction. For the avoidance of doubt, the New Owners shall retain ownership of the funds held within the Working Capital Accounts, and the Cash Balances held in the Working Capital Accounts shall be added to the Purchase Price as provided herein.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers Contributors discover any inaccuracies or errors in the pro rations prorations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.26.1, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The In such event, the parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve such issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor Contributors shall promptly take all action and pay all sums necessary so that such pro rations prorations and adjustments completed pursuant to Section 6.1 hereof shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Closing Date. Prorations Contributors and SCOLP further acknowledge and agree that if neither party has identified an inaccuracy or error in the prorations or adjustments completed pursuant to prorations are not subject to, or included withinSection 6.1 within such ninety (90) days, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)obligation to complete a post-closing adjustment shall be deemed null and void and of no further force and effect.
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments matters and prorations items shall be made at apportioned between the Closing between SCOLPparties based on actual daily amounts or, Owner and Contributor. The adjustments and prorations will be made by where appropriate, credited in total to a cash payment and shall not be an adjustment to particular party, as of the Units to be issued at Closing.Cut-off Time as provided below:
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion To the extent possible, Accounts Payable (including amounts due under Hotel Contracts assigned to Purchaser) shall be identified as of the Project prior to the Contribution Date (other than current taxes), Cut-off Time and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated in full at the Closing effective by Seller. Seller shall be and remain responsible for the full payment of any and all other Accounts Payable (whether known or unknown) as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrearsCut-off Time. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and Except to the extent that the taxing authorities have issued statements therefora credit therefor is provided to Purchaser hereunder at Closing, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes Seller shall indemnify and personal property taxes levied hold Purchaser harmless from and against any portion of claims arising from the Project and applicable failure to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
timely pay any Accounts Payable (bincluding amounts due under Hotel Contracts assigned to Purchaser) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution DateCut-off Time.
(cb) Charges Any fees or amounts prepaid, accrued or due and payable under Project Contracts any Permits (as defined belowother than Excluded Permits and other than for utilities which proration is addressed above) attributable transferred to the period prior to the Contribution Date Purchaser shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner prorated as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after Cut-off Time between Seller and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder Purchaser (including, without limitation, any fees paid or payable in connection with transfer of Permits). Seller shall receive a credit for all refundable deposits made by Seller under the costs and expenses specified in Section 19.1 Permits which are transferred to be paid by Contributor), shall be paid by Contributor and shall not be charged to, Purchaser or which remain on deposit for the responsibility benefit of SCOLPPurchaser.
(ic) The amount Seller shall cause to be removed all monies from all vending machines, laundry machines, pay telephones and other coin operated equipment as of the Cut-off Time and shall retain all escrows monies collected therefrom.
(d) Seller shall receive a credit for all Consumables and reserves required under the Mortgage Documents Liquor Inventory which are on deposit on hand as of the Contribution Date shall be paid by SCOLP Cut-off Time to the Contributor on the Contribution Date or, if not paid, an amount equal extent transferred to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at ClosingPurchaser or any of its agents or designees.
(je) In the event Any amounts prepaid or payable under any rental discounts, leasing incentives or other credits, incentives or obligations have been provided Hotel Contracts assigned to any Purchaser shall be prorated as of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP Cut-off Time. All security deposits shall be entitled transferred to Purchaser and all obligations with respect to such security deposits shall be assumed by Purchaser and Purchaser shall receive a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payablesecurity deposits.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Agreement for Sale and Purchase (American Realty Capital Hospitality Trust, Inc.)
Adjustments and Prorations. 6.1 The Unless otherwise agreed to in the Lease, the following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.:
(a) Real estate taxes due and personal property taxes payable in the current year together with current installments of special assessments which are a lien upon or levied against any portion of constitute liens on the Project prior to the Contribution Date (other than current taxes)Property and interest thereon due and payable therewith, and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate water and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made sewer charges on the basis of the amount of real estate and personal property taxes fiscal period for the current year if and which assessed (without regard to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date when such charges are payable) shall be prorated and adjusted between as of 12:01 a.m. local time on the parties date of the Closing on the basis of a calendar year basis and 365-day year, except that if any amount to be prorated covers a period of less than a year, the proration as to such amount shall be paid by Contributor made as of the Closing on the basis of the period so covered. The net amount of any adjustments shall be added to or SCOLPsubtracted from the Purchase Price, as the case may beapplicable.
(b) The amount of all unpaid All charges for electric and gas service and other utilities (other than water and other utility bills for the Project which are not directly billed sewer) supplied to the tenants of Real Property and the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period Improvements prior to the Contribution Date, Closing shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part obligation of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the ProjectSeller, and all other operating and other expenses Seller agrees to pay such amounts as may be incurred due in connection with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Datesuch utilities promptly upon notification of such overdue payment.
(c) Charges under Project Contracts (as defined below) attributable In the event that real estate taxes are to be prorated hereunder and if the Closing shall occur before a new tax rate is fixed, the proration of real estate taxes shall be upon the basis of the old tax rate for the preceding tax period applied to the period prior latest assessed valuation; PROVIDED, HOWEVER, that Seller and Buyer agree to make all necessary adjustments to such proration after the Closing upon receipt of the new tax rate to reflect the actual tax rate applicable to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Dateperiod(s) for which such proration is made.
(d) All rental If there is a water meter for the Real Property and other revenues collected by Owner up the Improvements, Seller shall furnish a reading or readings to a date not more than three (3) business days before the Contribution Closing Date which are allocable to and the period prior to unfixed meter charge shall be prorated on the Contribution Date, including without limit pass-through and pass-on charges, shall become a part basis of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 belowsuch last reading.
(e) Prepaid revenue received by Seller shall have the Owner attributable option to credit Buyer as an adjustment of the period after and including Purchase Price with the Contribution Date includingamount of any unpaid real estate taxes, without limit, tenant rents, pass-through charges, pass-on chargesassessments, water and other periodic revenues (the “Rents”) for the calendar month sewer charges, together with any adjustments hereunder in favor of Buyer, in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor case Buyer shall have no further rights following Closing with respect assumed the obligation to pay such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees amounts when they become due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to prorationpayable.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date Real estate tax refunds and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days credits received after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in Date which are attributable to the pro rations or adjustments done at fiscal year during which the Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments occurs shall be in accordance with prorated between Seller and Buyer based upon when the terms Closing Date occurs, after deducting the expenses of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).collection
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current 10.1 All taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney real estate taxes and other professional feespersonal property taxes, the Acquisition Loancollected rents, charges for utilities, including water, sewer, and the fuel oil, and for utility services, maintenance services, maintenance and service contracts, all operating costs and expenses payable by Ownerexpenses, Holding Company or Contributor hereunder and all other income, costs, and charges of every kind which in any manner relate to the operation of the Property (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), but not including insurance premiums) shall be paid prorated to the Date of Closing, except that if Seller does not receive the Purchase Price (by Contributor and receipt of wired funds or by receipt in hand of an official bank cashier's check) by 2:00 P.M., Boston, Massachusetts time, on the Date of Closing, all prorations shall not be charged tomade as of the following business day. If the amount of said taxes, assessments, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit rents is not known on the Contribution Date of Closing, they shall be paid by SCOLP to the Contributor apportioned on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any basis of the occupants at amounts for the Project for any reasonpreceding year, with a reapportionment as soon as the new amounts can be ascertained. If such taxes and the same have not been fully satisfied assessments shall thereafter be reduced by Closingabatement, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discountsabatement, incentives less the reasonable cost of obtaining the same, shall be apportioned between the parties, provided that neither party shall be obligated to institute or obligationsprosecute proceedings for an abatement unless otherwise agreed. In all eventsBuyer shall be responsible for the payment of any assessments or notice of assessments made after the date of execution hereof for any public improvement, all debts, obligations, charges, liabilities and liens with provided Buyer takes title hereunder. With respect to security deposits, if any, made by tenants at the Project Property and actually received in hand by Seller, Buyer shall receive credit therefor in the proration of rents. Any deposits on utilities paid by Seller shall be fully paid and satisfied returned to Seller. The foregoing provisions of this section shall not apply to any taxes, assessments, or credited or paid to SCOLP on the Contribution Dateother payments, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (which are directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against tenants under their leases. On the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this AgreementClosing, Seller shall deliver to Buyer all inventories of supplies on hand at the Property owned by Seller, if any, at no additional cost to Buyer.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hancock John Realty Income Fund Iii Limited Partnership)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLPSUI and the Company, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall be computed to, but not be an adjustment to including, the Units to be issued at ClosingClosing Date.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the each Project on or prior to the Contribution Date (other than current taxes)Closing Date, and all special assessments levied on any portion of the Project prior to the Contribution Closing Date (to the extent of installments thereof due on or prior to the Closing Date, ) shall be paid by Owner the Company on or Contributor prior to the Contribution Closing Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basisFurther, understanding that real estate all taxes in the State nature of Florida are payable rollback or similar taxes charged, assessed or levied based on the prior use or any change in arrears. Such proration use of the Land or Improvements prior to Closing shall be made on the basis obligation of the amount of Company. All real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes (the “Current Taxes”) levied against any portion of the each Project and applicable with respect to the period after applicable tax year in which the Contribution Date Closing occurs shall be prorated and adjusted between the parties such that the Company is responsible for that portion of the Current Taxes allocable to the period from the beginning of such tax year to the Closing Date, and SUI is responsible for that portion of the Current Taxes allocable to the period commencing on a calendar the Closing Date through the end of the tax year. In addition, if the Company or any Property Owner has paid any taxes or assessments for or in respect of tax years commencing after the Closing Date, then SUI shall be responsible for same and the amount thereof shall be credited to the Company at Closing. If the tax bills for the Current Taxes have not been issued by the Closing Date, the Company and SUI agree to prorate such Current Taxes on the basis of the taxes for the tax year basis immediately preceding the Closing for the purpose of computing the prorations under this Section 6.1(a), and to reprorate such Current Taxes at the request of either party promptly after the final bills for such Current Taxes are issued after Closing. The obligation to reprorate such Current Taxes will survive the Closing. Any refund or rebate of Current Taxes which is received by or payable to any Property Owner after the Closing shall be prorated between the Green Entities, on behalf of the Company, and SUI in the manner provided above promptly upon receipt. If there are any open appeals of real estate taxes or assessments for tax years prior to the tax year in which the Closing occurs, then the Green Entities, on behalf of the Company, shall be permitted to continue to prosecute and control such appeals at the Green Entities’ sole expense (and SUI covenants that it shall cause the applicable Property Owner, after Closing, to provide reasonable cooperation to the Green Entities to so prosecute and control such appeals); provided however, SUI have the right, at its expense, to participate in any proceeding which could reasonably be expected to affect any taxes required to be paid by Contributor any Property Owner on or SCOLPafter the date hereof and to consent to the settlement of any such proceeding and if the proceedings affect taxes and assessments for periods both before and after the Closing, as then the case may beparties will cooperate reasonably and the fees, costs and expenses of such proceeding shall be equitably allocated between the Green Parties and SUI. Further, if, after the Closing, any Property Owner receives or is entitled to receive any refund or rebate of taxes or assessments for periods prior to the tax year in which the Closing occurs, then upon receipt SUI shall pay the amount thereof directly to the Green Entities. The obligations of SUI under the preceding three sentences shall survive the Closing.
(b) The amount of all unpaid water and other utility bills for the each Project which are not directly billed to the tenants of the each Project, and all other operating and other expenses incurred with respect to the Project and Owner, and each Projects relating to the period prior to the Contribution Closing Date, shall be paid by Owner or Contributor the Company on or prior to the Contribution Closing Date or, if not paid, by the Green Entities as soon as possible after Closing following receipt of an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Dateinvoice therefor.
(c) Charges under Assumed Project Contracts (as defined in Section 7.1(f) below) attributable to the period prior to the Contribution Closing Date shall be paid by Owner or Contributor the Company prior to the Contribution Closing Date, or, if not paid, the amount due shall be reserved in cash within the Owner credited to SUI as of the Contribution Closing Date. Prepaid All charges under the Non-Assumed Project Contracts (as defined in Section 7.1(f) below) shall be paid by the Company or the Green Entities (if after Closing), whether such charges are attributable to the period prior to the Closing Date or the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Closing Date.
(d) All rental prepaid rental, pass-through charges, assessments and other revenues with respect to the operation of the Property collected by Owner the Company, the Holding Companies, or the Property Owners up to the Contribution Closing Date which are allocable to the period prior from and after the Closing Date shall be paid by the Company to the Contribution DateSUI. Current resident rents, including without limit pass-through charges and assessments shall be prorated and adjusted as of the date of Closing based upon the actual number of days in the month of Closing with SUI being credited for rents, pass-through charges and assessments on chargesthe date of Closing. In the event any pass-through charges (such as real estate taxes) are passed through to residents in the current year are based on a prior year’s amount without reconciliation with the residents, the amount actually used for the pass-through charge in the current year is the amount which shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received be prorated by the Owner attributable to Company and SUI under this paragraph (d) without any subsequent reconciliation between the period after Company and including the Contribution Date including, without limit, tenant rentsSUI. All rental, pass-through charges, pass-on charges, water assessments and other periodic revenues actually collected by SUI attributable to rent due for such month of Closing and received by SUI within sixty (the “Rents”60) for the calendar month in which days following the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project)Date, shall be prorated between the Green Entities and SUI based on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such monthmonth each owned each Project. SCOLP shall be paid or shall receive a credit for Except as provided in the pro rata share of the collected Rents received for the Closing Month. In addition preceding paragraph, to the foregoingextent SUI collects, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date within one hundred eighty (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days 180) after the Closing DateClosing, first to the cost of collecting such paymentsany rental, then to the most recent charges due andpass-through charges, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay assessments or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents revenues allocable to the period prior to the Closing Date are collected after ClosingDate, they SUI shall remain pay the property of same to the Owner and/or SCOLPGreen Entities and SUI shall use its good faith efforts to collect all such rent, and pass-through charges, assessments or revenues allocable to the period prior to the Closing Date, but SUI shall not be paid required to commence litigation or distributed institute evictions with respect to such tenants; provided, however, and except as otherwise set forth above, SUI is assuming no obligation whatsoever for the collection of such rentals, pass-through charges, assessments or revenues and all rentals, pass-through charges, assessments and revenues collected subsequent to the Contributor. The Owner Closing Date shall not distribute or assign always, in the first instance, be applied first to the Contributor most current rentals, pass-through charges, assessments and revenues, if any, then due under the Contributor Tenant Leases or otherwise. Further, the Company and/or the Green Entities shall not have the right to seek collection, through litigation or otherwise, of unpaid Rentsrent, pass-through charges or assessments from any person while they remain a tenant of a Project, nor shall the Company and/or the Green Entities institute any eviction or lockout proceedings against any residents to recover delinquent rents, pass-through charges or assessments. Any The Company, or the Green Entities following the Closing, shall retain one hundred (100%) percent of the right to receive any past due rents with respect to residents who are no longer residents of the Projects. Following Closing, SUI shall assume any eviction actions which are on-going as of the date of Closing Date and the expense shall assume responsibility for payment of any legal fees associated with such eviction actions incurred on and after the Closing Date, and sums received by SUI as a result of such eviction actions shall first be applied to reimburse SUI and Green Entities for legal fees incurred in connection with such actions and the balance of such amounts prorated between the Green Entities and SUI as provided above. Any pass-through charges or assessments that are paid by tenants at the Projects on an annual basis or other non-monthly basis shall be prorated based upon the actual number of days in the period in which the Closing occurs with SUI being credited for rents, pass-through charges and assessments on the date of Closing. Notwithstanding the foregoing, prior to Closing, in order to avoid the ongoing reconciliation described in this Section 6.1(d), SUI and the Company shall use good faith efforts to mutually agree upon terms by which SUI will have the right to retain all delinquent rents and receivables at the Projects collected after Closing in exchange for an agreed upon credit to the Company at Closing.
(e) Any Tenant Lease executed after the Effective Date and prior to the Closing Date shall be the responsibility executed in compliance with any applicable provisions of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property Exhibit I of the Owner and shall not be paid to the Contributor or otherwise subject to prorationOmnibus Agreement.
(f) An amount equal to all expenses of the Project Projects which were paid prior to the Contribution Closing Date and for which Owner SUI will benefit after the Contribution Closing Date including, without limitation, pre-paid taxes and assessments (if applicable), annual license and permit fees and pre-paid amounts (if any) under the Assumed Project Contracts, shall be disbursed or credited to Contributor the Company at the Closing, and an amount equal to all expenses of the Projects which were incurred prior to the Closing Date and are due or paid after the Closing Date shall be credited to SUI at the Closing and SUI shall cause all such expenses to be paid.
(g) All compensationThe credit to SUI, fringe benefits and other amounts due if any, payable in accordance with the employees of Owner or the manager of the Project for the period prior pre-closing operating covenants (attached to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes Omnibus Agreement) in connection with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at ClosingCapital Projects.
(h) All costs and expenses incurred by Owner, the Company or any Holding Company or Contributor Property Owner prior to the Contribution Closing Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, fees and the costs and expenses payable by Owner, the Company or any Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor)Property Owner hereunder, shall be paid by Contributor the Company or the Green Entities (if after the Closing) and shall not be charged to, or the responsibility of SCOLPany Holding Company or Property Owner or SUI.
(i) The amount of all escrows and reserves required under All interest accrued for the Mortgage Documents which are on deposit on Assumed Debt up to the Contribution Closing Date shall be paid by SCOLP to the Contributor Property Owners who are the borrowers under the Assumed Debt on or before the Contribution Date Closing Date, or, if not paid, an amount equal to the entire amount of such escrows and reserves accrued interest shall be credited to Contributor in connection with SUI as of the cash adjustment at ClosingClosing Date.
(j) In All escrows and reserve accounts under the event any rental discountsAssumed Debt and the Mortgage Documents which will remain in place after the Closing for the benefit of SUI, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reasonHolding Companies, and the same have not been fully satisfied Property Owners and shall be credited by SUI to the Green Entities, on behalf of the Company, at the Closing.
(k) The Green Entities, SCOLP shall on behalf of the Company, will be entitled to a credit or payment at Closing in for any utility deposit, public improvement bond or similar refundable security posted for the amount benefit of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to any Project for which SUI receives the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payablebenefit after Closing.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Companyl) The Company shall be entitled to a distribution from cause ALL, AIOP, each Property Owner and each Holding Company to directly or indirectly distribute to the Company prior to the Closing, and the Company shall distribute to the Green Entities, all cash on hand, cash equivalents and other investments and assets, other than the Projects and related Improvements, the Personal Property or other Acquired Assets described in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Omnibus Agreement.
6.3 If 6.2 If, within ninety one hundred eighty (90180) days after the Closing Closing, either SCOLP SUI or Contributor discovers the Green Entities discover any inaccuracies or errors in the pro rations prorations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.26.1, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The In such event, the parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve such issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP SUI and Contributor the Green Entities shall promptly take all action and pay all sums necessary so that such pro rations prorations and adjustments completed pursuant to Section 6.1 hereof shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Closing Date. Prorations and adjustments to prorations are not subject to, or included withinThe Company, the Minimum Amount Green Entities and SUI further acknowledge and agree that if neither party has identified an inaccuracy or Maximum Amount set forth error in the prorations or adjustments completed pursuant to Section 7.3(d6.1 within such one hundred eighty (180) days, the obligation to complete a post-closing adjustment shall be deemed null and void and of no further force and effect; provided, however, that the 180-day period in this Section 6.2 shall not apply to the reproration of Current Taxes under Section 6.1(a), which will be effected promptly after the issuance of the final tax bills for the Current Taxes.
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current 9.1 All taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney real estate taxes and other professional feespersonal property taxes, the Acquisition Loancollected rents, charges for utilities, including water, sewer, and the fuel oil, and for utility services, maintenance services, maintenance and service contracts, all operating costs and expenses payable by Ownerexpenses, Holding Company or Contributor hereunder and all other income, costs, and charges of every kind which in any manner relate to the operation of the Property (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), but not including insurance premiums) shall be paid prorated to the Date of Closing, except that if Seller does not receive the Purchase Price (by Contributor and receipt of wired funds or by receipt in hand of an official bank cashier's check) by 2:00 p.m., E.S.T., on the Date of Closing, all prorations shall not be charged tomade as of the following business day. If the amount of said taxes, assessments, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit rents is not known on the Contribution Date of Closing, they shall be paid by SCOLP to the Contributor apportioned on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any basis of the occupants at amounts for the Project for any reasonpreceding year, with a reapportionment as soon as the new amounts can be ascertained. If such taxes and the same have not been fully satisfied assessments shall thereafter be reduced by Closingabatement, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discountsabatement, incentives less the reasonable cost of obtaining the same, shall be apportioned between the parties, provided that neither party shall be obligated to institute or obligationsprosecute proceedings for an abatement unless otherwise agreed. In all eventsBuyer shall be responsible for the payment of any assessments or notice of assessments made after the date of execution hereof for any public improvement, all debts, obligations, charges, liabilities and liens with provided Buyer takes title hereunder. With respect to security deposits, if any, made by tenants at the Project Property and actually received in hand by Seller, Buyer shall receive credit therefor. Any deposits on utilities paid by Seller shall be fully paid and satisfied returned to Seller. The foregoing provisions of this Section 10.1 shall not apply to any taxes, assessments, or credited other payments which are directly payable by tenants under their leases or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior reimbursable by such tenants to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all owner of the cash and cash equivalent assets held by Owner Property, as of landlord, under their leases. On the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this AgreementClosing, Seller shall deliver to Buyer all inventories of supplies o hand at the Property owned by Seller, if any, at no additional cost to Buyer.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hancock John Realty Income Fund Iii Limited Partnership)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current All taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney real estate taxes and personal property taxes, collected rents, charges for utilities, including water, sewer, and fuel oil, and for utility services, maintenance services, maintenance and service contracts, all operating costs and expenses, and all other income, costs and charges of every kind which in any manner relate to the operation of the Premises (but not including insurance premiums) shall be prorated to the Date of Closing, except that if Seller does not receive the Purchase Price (by receipt of wired funds or by receipt in hand of an official bank cashier's check) by noon, Eastern Standard Time, on the Date of Closing, all prorations shall be made as of the following Business Day. All amounts collected by Buyer from tenants after the Date of Closing shall be first applied to current rents and other professional fees, amounts due from such tenant and then applied to delinquent rents and other amounts due from such tenant in inverse order of maturity. The amounts thus collected and applied which are applicable to periods prior to the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), Date of Closing shall be paid by Contributor and shall not be charged toremitted to Seller. If the amount of said taxes, assessments, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit rents is not known on the Contribution Date of Closing, they shall be paid by SCOLP to the Contributor apportioned on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any basis of the occupants at amounts for the Project for any reasonpreceding year, with a reapportionment as soon as the new amounts can be ascertained. If such taxes and the same have not been fully satisfied assessments shall thereafter be reduced by Closingabatement, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discountsabatement, incentives or obligations. In all eventsless the reasonable cost of obtaining the same, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid apportioned between the parties, provided that neither party shall be obligated to institute or prosecute proceedings for an abatement unless otherwise agreed. Buyer shall be responsible for the payment of any assessments or notice of assessments made and satisfied due on and after the Date of Closing for any public improvement, provided Buyer takes title hereunder; Seller shall be responsible for payment of any assessments or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or notice of assessments made prior to the Contribution DateDate of Closing. With respect to security deposits, Contributor if any, made by tenants on the Premises (directly as required in the Leases or indirectly through otherwise), Buyer shall receive credit therefor in the Holding Company) proration of rents. Any deposits on utilities paid by Seller shall be entitled returned to a distribution from Owner in an amount equal Seller. The foregoing provisions of this Section shall not apply to all any taxes, assessments, or other payments which are directly payable by tenants under their leases or reimbursable by such tenants to the owner of the cash and cash equivalent assets held by Owner Premises, as of landlord, under their leases. On the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this AgreementClosing, Seller shall deliver to Buyer all inventories of supplies on hand at the Premises owned by Seller, if any, at no additional cost to Buyer.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hancock John Realty Income Fund Ii Limited Partnership)
Adjustments and Prorations. 6.1 The following adjustments and prorations pro-rations shall be, as appropriate, added to or deducted from the amount set forth in Section 2.1(c), and shall be made at computed to, but not including, the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.Date:
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project each Property on or prior to the Contribution Date (other than current taxes)Closing Date, and all special assessments levied on any portion of the Project prior to the Contribution Closing Date (to the extent of installments thereof due on or prior to the Closing Date, ) shall be paid by Owner the relevant Operating Company on or Contributor prior to the Contribution Closing Date. Current All real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes (the "Current Taxes") levied against any portion of the Project and applicable each Property with respect to the period after applicable tax year in which the Contribution Date Closing occurs shall be prorated and adjusted between the parties such that the Seller is responsible for that portion of the Current Taxes allocable to the period from the beginning of such tax year to the Closing Date, and Purchaser is responsible for that portion of the Current Taxes allocable to the period commencing on a calendar the Closing Date through the end of the tax year. In addition, if the relevant Operating Company has paid any taxes or assessments for or in respect of tax years commencing after the Closing Date, then Purchaser shall be responsible for same and the amount thereof shall be credited to the Seller at Closing. If the tax bills for the Current Taxes have not been issued by the Closing Date, Seller and Purchaser agree to prorate such Current Taxes on the basis of the taxes for the tax year basis immediately preceding the Closing for the purpose of computing the pro-rations under this Section 6.1(a), and to re-prorate such Current Taxes at the request of either party promptly after the final bills for such Current Taxes are issued after Closing. The obligation to re-prorate such Current Taxes will survive the Closing. Any refund or rebate of Current Taxes which is received by or payable to any relevant Operating Company after the Closing shall be prorated between Seller and Purchaser in the manner provided above promptly upon receipt. If there are any open appeals of real estate taxes or assessments for tax years prior to the tax year in which the Closing occurs, then the relevant Operating Company shall be permitted to continue to prosecute and control such appeals at Seller's sole expense (and Purchaser covenants that it shall cause the applicable Operating Company after Closing, to provide reasonable cooperation to Seller to so prosecute and control such appeals); provided however, Purchaser has the right, at its expense, to participate in any proceeding which could reasonably be expected to affect any taxes required to be paid by Contributor any Operating Company on or SCOLPafter the Closing Date and to consent to the settlement of any such proceeding and if the proceedings affect taxes and assessments for periods both before and after the Closing, as then the case may beparties will cooperate reasonably and the fees, costs and expenses of such proceeding shall be equitably allocated between Seller and Purchaser. Further, if, after the Closing, any Operating Company receives or is entitled to receive any refund or rebate of taxes or assessments for periods prior to the tax year in which the Closing occurs, then upon receipt Purchaser shall pay the amount thereof directly to Seller or Seller's successors and assigns.
(b) The amount of all unpaid water water, sewer and other utility bills for the Project which are not directly billed to the tenants of the Projecteach Property, and all other operating and other expenses incurred with respect to the Project and Owner, and each Property relating to the period prior to the Contribution Closing Date, shall be paid by Owner or Contributor Seller on or prior to the Contribution Closing Date or, if not paid, as soon as possible after Closing following receipt of an amount equal to such unpaid expenses invoice therefor. Seller shall be part of retain the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect right to the Project and Owner, and relating refund of utility charges attributable to periods prior to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Closing Date.
(c) Charges under Project Assumed Property Contracts (as defined in Section 7.1(d) below) attributable to the period prior to the Contribution Closing Date shall be paid by Owner or Contributor the relevant Operating Company prior to the Contribution Closing Date, or, if not paid, the amount due shall be reserved in cash within the Owner credited to Purchaser as of the Contribution Closing Date. Prepaid All charges under Project the Non-Assumed Property Contracts attributable to the period after and including the Contribution Date (as defined in Section 7.1(d) below) shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which Seller, whether such charges are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected or the period after Closingthe Closing Date.
(d) The rents and charges due under all Tenant Leases, they shall remain hot and cooled water charges, electricity and other utility charges and all other additional rent, sundry charges paid by lessees under the property of the Owner and/or SCOLPTenant Leases and other income to an Operating Company, and shall not be paid to including income received or distributed receivable by an Operating Company for vending machines, to the Contributor. The Owner shall not distribute or assign extent collected by Seller prior to the Contributor Closing Date and the Contributor shall not have the right to seek collectionwhich, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense Date, represent payments thereof to an Operating Company which are applicable in whole or in part to a period of any legal fees associated with such eviction actions incurred on and after time subsequent to the Closing Date shall be credited to Purchaser.
(e) All of the responsibility items referenced in subsection (d) above which are due and payable prior to the Closing Date, but which have not been collected by Seller, shall be pro-rated as follows at settlement: Current rental income shall be pro-rated as of Owner after the Closing Date. All accounts not yet paid and delinquent 30 days or less shall be considered paid for pro-ration calculations. All accounts not be charged to Contributor. Sums received on account of such litigation yet paid and delinquent 31 days or more shall also remain become the property of Purchaser with no pro-ration. All prepaid rents shall be transferred to Purchaser or retained by the Owner and relevant Operating Company. All tenant security deposits shall not be paid transferred to Purchaser or retained by the relevant Operating Company. Notwithstanding anything herein to the Contributor or otherwise subject contrary, Purchaser shall pay to proration.
(f) An amount equal to Seller all expenses back rental amounts covering the term of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Seller's ownership received by Purchaser post-Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Global Self Storage, Inc.)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at All revenues arising from the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to Station up until midnight on the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project day prior to the Contribution Date (other than current taxes)TBA Date, and all special assessments levied expenses arising from the Station up until midnight on any portion of the Project day prior to the Contribution TBA Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current including business and license fees (including any retroactive adjustments thereof), utility charges, real estate and personal property taxes and assessments shall be prorated at levied against the Closing effective Assets, accrued employee benefits such as vacation time and sick time, property and equipment rentals, applicable copyright or other fees, sales and service charges, taxes (except for taxes arising from the transfer of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”Assets hereunder), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project)similar prepaid and deferred items, shall be prorated on an accrual basis. SCOLP between Buyer and Seller in accordance with the principle that Seller shall either pay the Contributor or provide the Contributor with a credit for (x) receive all unpaid Rents from tenants who are not delinquent more than thirty days as revenues, and all refunds to Seller and deposits of the Closing Date (for those residents which remain in occupancy at the Project); Seller held by third parties, and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit responsible for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoingall expenses, SCOLP costs and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents liabilities allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property conduct of the Owner and/or SCOLP, and shall not be paid to business or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as operations of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project Station for the period prior to the Contribution TBA Date, whether and Buyer shall receive all revenues and shall be responsible for all expenses, costs and obligations allocable to the conduct of the business or operations of the Station on the TBA Date and for the period thereafter. Buyer shall receive credit to the extent of the value (as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, calculated in Seller's financial statements consistent with past practice) of any and all amounts due advertising time to be run following the TBA Date for which trade or barter consideration has been received by the payment of employment taxes with respect thereto, shall be paid by Owner on or Seller prior to the Contribution TBA Date. Notwithstanding the foregoing, there shall be no adjustment for, and Seller shall remain solely liable with respect to, any Contracts not included in the Assumed Contracts, or any other obligation or liability not being assumed by Buyer in accordance with Section 2.5.
A. Any adjustments or prorations will, insofar as feasible, be determined and paid on the TBA Date, orwith final settlement and payment being made in accordance with the procedures set forth in Section 2.4B.
B. Within sixty (60) days after the TBA Date, if not paidBuyer shall deliver to Seller a certificate (the "Adjustment Certificate"), an amount equal signed by a senior officer of Buyer after due inquiry by such officer but without any personal liability to such entire unpaid liability officer, providing a compilation of the adjustments and prorations to be made pursuant to this Section 2.4, including any adjustments and prorations made at the TBA Date, together with a copy of any working papers relating to such Adjustment Certificate and such other supporting evidence as Seller may reasonably request. If Seller shall conclude that the Adjustment Certificate does not accurately reflect the adjustments and prorations to be paid in cash at Closing.
made pursuant to this Section 2.4, Seller shall, within thirty (h30) All costs and expenses incurred by Ownerdays after its receipt of the Adjustment Certificate, the Holding Company or Contributor prior provide to the Contribution Date in connection with the transactions contemplated herein and the performance Buyer its written statement of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loanany discrepancies believed to exist. Joseph L. Winn on behalf of Buyer, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility John M. Brennon on behalf of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇, ▇▇ Entities hereunder. The Owner shall not distribute any other right▇heir respective designees, claim, cause of action or asset after ▇▇▇▇▇ ▇▇▇▇▇▇t jointly to resolve the Effective Date of this Agreement.
6.3 If discrepancies within ninety fifteen (9015) days after receipt of Seller's discrepancy statement, which resolution, if achieved, shall be binding upon all parties to this Agreement and not subject to dispute or review. If such representatives cannot resolve the Closing either SCOLP or Contributor discovers discrepancy to their mutual satisfaction within such fifteen (15) day period, Buyer and Seller shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review the Adjustment Certificate together with Seller's discrepancy statement and any inaccuracies or errors in the pro rations or other relevant documents. The cost of retaining such independent public accounting firm shall be borne equally by Buyer and Seller. Such firm shall report its conclusions as to adjustments done at Closing pursuant to Sections 6.1 and/or 6.2this Section 2.4, such party which report shall notify the other party of such inaccuracy be conclusive on all parties to this Agreement and not subject to dispute or error by written notice including reasonable detail of the review. If, after adjustment as appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue the amount of the aforesaid adjustments paid or credited at the TBA Date, Buyer is determined to owe an amount to Seller, Buyer shall pay such amount to Seller, and the prorations and adjustments done at Closing pursuant if Seller is determined to Section 6.1. After the parties resolve any owe an amount to Buyer, Seller shall pay such issues oramount thereof to Buyer, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to each case within ten (10) days of such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)determination.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at All revenues arising from the Station up -------------------------- until midnight on the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes)Date, and all special assessments levied expenses arising from the Station up until midnight on any portion of the Project prior to the Contribution Closing Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current including business and license fees (including any retroactive adjustments thereof), utility charges, real estate and personal property taxes and assessments levied against the Assets, property and equipment rentals, applicable copyright or other fees, sales and service charges, taxes (except for taxes arising from the transfer of the Assets hereunder), and similar prepaid and deferred items, shall be prorated at between Buyer and Seller in accordance with the Closing effective as principle that Seller shall receive all revenues, and all refunds to Seller and deposits of the Closing Date on a calendar year basisSeller held by third parties, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLPresponsible for all expenses, as the case may be.
(b) The amount of all unpaid water costs and other utility bills for the Project which are not directly billed liabilities allocable to the tenants conduct of the Project, and all other operating and other expenses incurred with respect to business or operations of the Project and Owner, and relating to Station for the period prior to the Contribution Closing Date, and Buyer shall receive all revenues and shall be paid by Owner or Contributor on or prior to the Contribution Date orresponsible for all expenses, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water costs and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are obligations allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part conduct of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as business or operations of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated Station on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and for the date which is ninety period thereafter. Notwithstanding the foregoing, there shall be no adjustment for, and Seller shall remain solely liable with respect to, any Contracts not included in the Assumed Contracts, or any other obligation or liability not being assumed by Buyer in accordance with Section 2.5.
A. Any adjustments or prorations will, insofar as feasible, be determined and paid on the Closing Date, with final settlement and payment being made in accordance with the procedures set forth in Section 2.4B.
B. Within sixty (60) days after the Closing Date, first Buyer shall deliver to Seller a certificate (the cost "Closing Certificate"), signed by a senior officer of collecting Buyer after due inquiry by such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect officer but without any personal liability to such Rents. In addition officer, providing a compilation of the adjustments and prorations to the foregoingbe made pursuant to this Section 2.4, SCOLP shall also pay or provide Contributor including any adjustments and prorations made at Closing, together with a credit for the amount copy of accrued but unpaid utility fees due from the tenants with respect any working papers relating to periods prior to Closingsuch Closing Certificate and such other supporting evidence as Seller may reasonably request. To the extent any Rents allocable to the period prior to If Seller shall conclude that the Closing Date are collected Certificate does not accurately reflect the adjustments and prorations to be made pursuant to this Section 2.4, Seller shall, within thirty (30) days after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as its receipt of the Closing Date and the expense Certificate, provide to Buyer its written statement of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility discrepancies believed to exist. Jose▇▇ ▇. ▇▇▇▇ ▇▇ behalf of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwiseBuyer, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the Dirk ▇▇▇▇▇▇▇▇ Entities hereunder. The Owner ▇▇ behalf of Seller, or their respective designees, shall not distribute any other right, claim, cause of action or asset after attempt jointly to resolve the Effective Date of this Agreement.
6.3 If discrepancies within ninety fifteen (9015) days after receipt of Seller's discrepancy statement, which resolution, if achieved, shall be binding upon all parties to this Agreement and not subject to dispute or review. If such representatives cannot resolve the discrepancy to their mutual satisfaction within such fifteen (15) day period, Buyer and Seller shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review the Closing either SCOLP or Contributor discovers Certificate together with Seller's discrepancy statement and any inaccuracies or errors in the pro rations or other relevant documents. The cost of retaining such independent public accounting firm shall be borne equally by Buyer and Seller. Such firm shall report its conclusions as to adjustments done at Closing pursuant to Sections 6.1 and/or 6.2this Section 2.4, such party which report shall notify the other party of such inaccuracy be conclusive on all parties to this Agreement and not subject to dispute or error by written notice including reasonable detail of the review. If, after adjustment as appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue the amount of the aforesaid adjustments paid or credited at the Closing, Buyer is determined to owe an amount to Seller, Buyer shall pay such amount to Seller, and the prorations and adjustments done at Closing pursuant if Seller is determined to Section 6.1. After the parties resolve any owe an amount to Buyer, Seller shall pay such issues oramount thereof to Buyer, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to each case within ten (10) days of such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)determination.
Appears in 1 contract
Sources: Asset Purchase Agreement (Salem Communications Corp /De/)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLPTHE FOLLOWING MATTERS AND ITEMS SHALL BE APPORTIONED BETWEEN THE PARTIES OR, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.WHERE APPROPRIATE, CREDITED IN TOTAL TO A PARTICULAR PARTY, AS OF THE CUT OFF TIME AS PROVIDED BELOW:
(a) Real estate taxes Accounts Receivable; Trade Accounts Payable. Accounts Receivable and personal property taxes which are a lien upon or levied against any portion trade accounts payable shall be identified as of the Project Cut Off Time. Purchaser shall purchase the Accounts Receivable at par, subject to a reasonable bad debt reserve to be agreed upon by the Parties prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion end of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate Inspection Period and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or Seller shall receive a credit at the Closing for the pro rata share aggregate amount of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days all such Accounts Receivable as of the Closing Date (for those residents which remain in occupancy at Cut Off Time. Seller shall pay all trade accounts payable as of the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable Cut Off Time that relate to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay matters arising or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period accruing prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, for any work performed or materials delivered prior to Closing in connection with any capital expenditures at the costs Property, but subject to Section 14.01(h)) in the ordinary course when due and expenses specified in Section 19.1 to be paid by Contributor), Purchaser shall be paid by Contributor responsible for all such trade accounts payable from and after the Closing. Revenue from room rentals (including food and beverage receivables charged to guest room accounts) shall belong to Seller to the extent attributable to any period prior to the Closing Date; provided, however, room charges (less third party collection costs, including, but not be charged limited to, credit card fees, travel agent fees or commissions and other similar charges) for the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under night immediately preceding the Mortgage Documents which are on deposit on the Contribution Closing Date shall be paid by SCOLP divided equally between Purchaser and Seller. Revenue from the Hotel attributable to food and beverages (including alcoholic beverages) and other sales or services through the Contributor close of business for such food and beverage outlets or such other sales or service centers on the Contribution night (whether prior to or after the Cut Off Time) immediately preceding the Closing Date orshall belong to Seller (such revenue to be determined based on completion of the night auditor’s run on the Closing Date). Thereafter, if not paid, an amount equal revenue from the Hotel attributable to such escrows food and reserves beverage and other sales or services shall belong to Purchaser. Each of Purchaser and Seller shall be credited to Contributor responsible for the payment of any sales and/or hotel/motel occupancy taxes collected or otherwise due and payable in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided revenue allocated to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to under this Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d7.01(a).
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Hotel (Chesapeake Lodging Trust)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current All taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney real estate taxes and other professional feespersonal property taxes, the Acquisition Loancollected rents, charges for utilities, including water, sewer, and the fuel oil, and for utility services, maintenance services, maintenance and service contracts, all operating costs and expenses payable by Ownerexpenses, Holding Company or Contributor hereunder and all other income, costs, and charges of every kind which in any manner relate to the operation of the Premises (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), but not including insurance premiums) shall be paid prorated to the Date of Closing, except that if Seller does not receive the Purchase Price (by Contributor and shall not be charged toreceipt of wired funds or by receipt in hand of an official bank cashier's check) by noon, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit Boston time, on the Contribution Date of Closing, all prorations shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any made as of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP following business day. Seller shall be entitled to all delinquent rents, without adjustment or appointment, irrespective of which party collects the same in the first instance, and Buyer shall pay any such delinquent rents to Seller forthwith upon receipt. If the amount of said taxes, assessments, or rents is not known on the Date of Closing, they shall be apportioned on the basis of the amounts for the preceding year, with a credit or payment at Closing in reapportionment as soon as the new amounts can be ascertained. If such taxes and assessments shall thereafter be reduced by abatement, the amount of such discountsabatement, incentives less the reasonable cost of obtaining the same, shall be apportioned between the parties, provided that neither party shall be obligated to institute or obligationsprosecute proceedings for an abatement unless otherwise agreed. In all eventsBuyer shall be responsible for the payment of any assessments or notice of assessments made after the date of execution hereof for any public improvement, all debts, obligations, charges, liabilities and liens with provided Buyer takes title hereunder. With respect to security deposits, if any, made by tenants on the Project Premises and actually received in hand by Seller, Buyer shall receive credit therefor in the proration of rents. Any deposits on utilities paid by Seller shall be fully paid and satisfied returned to Seller. The foregoing provisions of this section shall not apply to any taxes, assessments, or credited other payments which are directly payable by tenants under their leases or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior reimbursable by such tenants to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all owner of the cash and cash equivalent assets held by Owner Premises, as of landlord, under their leases. On the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this AgreementClosing, Seller shall deliver to Buyer all inventories of supplies on hand at the Premises owned by Seller, if any, at no additional cost to Buyer.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hancock John Realty Income Fund LTD Partnership)
Adjustments and Prorations. 6.1 The following adjustments Adjustments and prorations with respect to the Property shall be made at computed and determined between the parties as of 12:01 a.m. on the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment Date (as if Purchaser were vested with title to the Units to be issued at Closing.Property during the entire Closing Date) as follows:
(a) Real General real estate taxes taxes, special assessments and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made based on the basis of then current taxes (if known, based on final tax bills for such period -- and if not known, based on the amount of most recent ascertainable taxes) and the special assessments due and owing prior to Closing, and Seller or Purchaser shall receive a credit at Closing, as appropriate. Without affecting the obligations set forth in this Section 14(a), the prorations for real estate and personal property taxes for the current year if and shall be equitably adjusted to reflect any such items directly paid by tenants to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate applicable third-party payees). If final taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion or special assessments are not known as of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between Closing, the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may beagree to reprorate when such amounts become known.
(b) The amount of all unpaid water All rents and other utility bills for the Project which are not directly billed to the sums receivable from tenants of the ProjectProperty, which were earned and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall Closing Date, will be paid retained by Owner or Contributor prior Seller to the Contribution Date, or, if not paid, extent that such rents have been collected on or before the amount due shall be reserved in cash within the Owner as of the Contribution Closing Date. Prepaid charges under Project Contracts Rents earned and attributable to the period after beginning on the Closing Date and including the Contribution Date shall thereafter will be paid to Purchaser by SCOLP the tenants, or credited to Contributor on the Contribution Date.
Purchaser at Closing (d) All rental and other revenues collected if such rents are received by Owner up Seller prior to the Contribution Date which are allocable Closing Date). Seller shall receive no closing proration for rents delinquent as of the Closing Date. All payments from tenants, on account of rent or otherwise, received by Seller after the Closing Date, whether attributable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first shall be deemed to the cost be held in trust by Seller for Purchaser and shall be promptly delivered to Purchaser by Seller for application as provided in this Section 14(b). All payments from tenants, on account of collecting such paymentsrent or otherwise, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition Date by Purchaser and all amounts received from Seller by Purchaser pursuant to the foregoingimmediately preceding sentence, SCOLP shall also pay be applied first to rent or provide Contributor with a credit for other sums then due under the amount Leases attributable to the period beginning on the Closing Date and continuing thereafter, and then to payment to Seller on account of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable rents which were earned and attributable to the period prior to the Closing Date are collected after but which were not paid prior to Closing. For a period of six (6) months following the Closing Date, they Purchaser shall remain the property of the Owner and/or SCOLP, continue to ▇▇▇▇ existing tenants for accounts receivable and shall not be paid to or distributed delinquent rents attributable to the Contributor. The Owner shall not distribute or assign Property for the period prior to the Contributor and Closing Date. Any customary out-of-pocket costs incurred by Purchaser in collection of delinquent rentals shall be deducted by Purchaser prior to the Contributor payment to Seller on account of delinquent rentals as provided herein. Seller shall not have the right to seek collectioncontact tenants to request payment of delinquent rentals after the Closing Date and institute legal proceedings to collect such delinquent rentals, through litigation or otherwise, of unpaid Rentsbut shall have no right to evict any tenant. Any eviction actions such enforcement or collection efforts by Seller shall be at Seller’s sole expense. Notwithstanding anything herein to the contrary, at Closing, Purchaser shall be entitled to receive a credit against the Purchase Price equal to any remaining so-called “free rent” under the Leases for tenants HCSC, Drilling Info, Quanex and Sound Financial.
(c) On the Closing Date, Seller shall deliver to Purchaser in cash, as a credit against the Purchase Price or as an adjustment to the prorations provided for elsewhere in this Section 14, as appropriate, an amount equal to all cash security deposits made by tenants occupying the Property which were paid to Seller by such tenants and which shall not have been applied by Seller or otherwise pursuant to the Leases, together with interest owing thereon pursuant to the applicable Lease, if any, and together with a listing of the tenants to which such deposits and interest are on-going owing. With respect to any security deposit which is evidenced by a letter of credit, Seller shall (i) deliver to Purchaser at Closing such original letter of credit, and (ii) execute and deliver at Closing such other instruments as the issuer of such letter of credit shall reasonably require in order to cause the named beneficiary under such letter of credit to be changed to Purchaser.
(d) All amounts payable, owing or incurred in connection with the Property under the Contracts to be assumed by Purchaser under the Assignment and Assumption shall be prorated as of the Closing Date Date.
(e) All 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 expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to prorationrespective utilities involved.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date The ▇▇▇▇▇▇▇ Money shall be disbursed or credited paid to Contributor Seller at Closing and Purchaser shall be entitled to a credit against the ClosingPurchase Price in the amount thereof.
(g) All compensation, fringe benefits utility charges that are not separately metered to tenants shall be prorated to the Closing Date and other Seller shall obtain a final billing therefor and pay any amounts due the employees of Owner or the manager of the Project owing therein for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, Closing Date and all Purchaser shall pay any amounts due owing for the payment of employment taxes with respect theretoperiod on and after the Closing Date. To the extent that utility bills cannot be handled in the foregoing manner, they shall be paid by Owner prorated as of the Closing Date based on or prior to the Contribution Date, or, if not paid, an amount equal to most recent bills available and reprorated when such entire unpaid liability shall be paid in cash at Closingfinal bills become known.
(h) All Purchaser shall pay its pro rata share (based on the applicable commencement date of the lease and the lease term) of all leasing commissions and tenant improvement costs and expenses incurred by Owner, payable with respect to Leases entered into after the Holding Company or Contributor Date of Agreement. If Seller has paid such amounts prior to the Contribution Date Closing Date, Purchaser shall reimburse Seller for Purchaser’s pro rata share of such payments at Closing. If Seller has not paid such amounts prior to the Closing Date, Purchaser shall receive a credit against the Purchase Price at Closing in connection with the transactions contemplated herein and the performance an amount equal to Seller’s pro rata share of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLPsuch amounts.
(i) The amount Seller and Purchaser agree that as soon as reasonably possible after the close of all escrows the calendar year of the Property, the parties shall undertake a final master reconciliation of CAM, taxes and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP other pass-throughs and additional rent with respect to the Contributor on Leases and the Contribution Date orProperty. Purchaser shall prepare the tenant reconciliations for Seller’s review and approval. Purchaser shall transmit such information to the tenants. To the extent the reconciliation concludes that Seller owes any tenants at the Property reimbursements due to the over collection of CAM, if not paidtaxes and other pass-throughs and additional rent for 2012, an then Seller shall pay such amount equal to Purchaser upon the delivery of the reconciliation. To the extent the reconciliation concludes that Seller is owed amounts from any tenants at the Property due to the under collection of CAM, taxes and other pass-throughs and additional rent for 2012, then Purchaser shall promptly pay over to Seller all such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closingamounts received by Purchaser from any such tenants.
(j) In the event any rental discountsUnless provided otherwise hereinabove, leasing incentives or such other credits, incentives or obligations have been provided to any items as are customarily prorated in a purchase and sale of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP type contemplated hereunder shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner prorated as of the Contribution Closing Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. .
(k) The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date provisions of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount 14 shall survive for the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)Survival Period.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (KBS Strategic Opportunity REIT, Inc.)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes All revenues arising from the operation of the Business and the ownership of the Assets, earned or accrued until midnight on the day prior to the Closing Date or any Subsequent Closing Date, in the case of Additional Assets being transferred at such Subsequent Closing Date, and all expenses, costs or liabilities, arising therefrom incurred, accrued or payable up until such time including, without limitation, business, license, utility charges, real and personal property taxes which are a lien upon or Taxes and assessments levied against any portion of the Project Assets, property and equipment rentals, applicable copyright or other fees, sales and service charges and Taxes (other than income Taxes, which shall be Seller's sole responsibility for all Taxable periods ending prior to the Contribution Closing Date (other than current taxes)or any Subsequent Closing Date, in the case of Additional Assets being transferred at such Subsequent Closing Date, and all special assessments levied on any portion those Taxes arising from the sale and transfer of the Project prior to Assets, which, in the Contribution Date, case of transfer and other similar Taxes shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments as set forth in Section 5.8) ----------- shall be prorated at between Buyer and Seller in accordance with the Closing effective as of the Closing Date on a calendar year basisprinciple that: (i) Seller shall receive all revenues, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate refunds and personal property taxes for the current year if and deposits (to the extent that the taxing authorities have issued statements thereforsuch refunds or deposits can be released or refunded) of Seller held by third parties, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor responsible for all expenses, costs and liabilities incurred, payable or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part operation of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) Business for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closingor any Subsequent Closing Date, they in the case of Additional Assets being transferred at such Subsequent Closing Date and (ii) Buyer shall remain the property of the Owner and/or SCOLPreceive all revenues earned or accrued, and shall not be paid to responsible for all expenses, costs and liabilities incurred, payable or distributed allocable to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as operation of the Closing Date and Business for the expense of any legal fees associated with such eviction actions incurred period commencing on and continuing after the Closing Date shall be the responsibility of Owner after or any Subsequent Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly payin the case of Additional Assets being transferred at such Subsequent Closing Date (provided, however, that Buyer -------- ------- shall have no responsibility for any wages, salaries, overtimevacation, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives pay or other creditssimilar expenses of any employee of Seller, incentives or obligations have been provided to it being understood that Buyer is not the successor employer of any of Seller's employees). Notwithstanding the occupants at the Project for any reasonforegoing, Seller hereby acknowledges and the same agrees that Buyer shall have not been fully satisfied by Closing, SCOLP shall be entitled all rights to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all receive each of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunderdeposits listed on Schedule 2.6(a) hereto. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).---------------
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes The Base Purchase Price shall be adjusted such that all revenues, expenses and personal property taxes which are a lien upon or levied against any portion of other Liabilities arising from the Project prior to Systems up until 12:01 a.m. on the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Closing Date, shall be paid by Owner or Contributor prior including subscriber and advertising revenues, franchise fees, pole and other rental charges payable with respect to the Contribution Date. Current cable television service, utility charges, real estate and personal property taxes and assessments levied against the Purchased Assets, property and equipment rentals, applicable copyright or other fees, sales and service charges, taxes (except for taxes arising from the transfer of the Purchased Assets hereunder which are covered by Section 11.1(b)), and similar prepaid and deferred items, shall be prorated at between Purchaser and Seller in accordance with the principle that Seller shall be responsible for all expenses, costs and Liabilities and entitled to all revenues allocable to the conduct of the Business for the period prior to the Closing effective as Date, and Purchaser shall be responsible for all expenses, costs and obligations and entitled to all revenues allocable to the conduct of the Business on the Closing Date on a calendar year basisand for the period thereafter, understanding that real estate taxes in the State all of Florida are payable in arrears. Such proration which shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may bedetermined in accordance with GAAP.
(b) The amount of all unpaid water and other utility bills for At Closing, the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, Base Purchase Price shall be paid increased by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part (a) 100% of the cash adjustment at Closing. The face amount of all prepaid water customer Accounts Receivable that are outstanding on the Closing Date and other utility bills have been outstanding for 30 or less from the Projectfirst day of the period to which any outstanding ▇▇▇▇ relates, (b) 95% of the face amount of all customer Accounts Receivable that are outstanding on the Closing Date and have been outstanding more than 30 days but less than 60 days from the first day of the period to which any outstanding ▇▇▇▇ relates, (c) 0% for all customer Accounts Receivable that are outstanding on the Closing Date and have been outstanding more than 60 days from the first day of the period to which any outstanding ▇▇▇▇ relates, and (d) 100% of the face amount of all other operating Accounts Receivable related to advertising services and other expenses time provided by Seller prior to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution DateClosing.
(c) Charges under Project Contracts (At Closing, the Base Purchase Price shall be increased by an amount equal to 100% of the face amount of all payments and sums deposited or advanced by Seller to a landlord, utility, Governmental Body or any other party as defined below) attributable a security deposit or in exchange for initiation of a service and which will inure to the period benefit of ▇▇▇▇▇▇▇▇▇.
(▇) At Closing, the Base Purchase Price shall be reduced by an amount equal to (i) any customer advance payments (i.e., customer payments received by Seller prior to the Contribution Date shall Closing but relating to service to be paid provided by Owner or Contributor Purchaser after the Closing) and deposits (including any interest owing thereon), (ii) except as set forth in Section 3.4(c), above, any other advance payments (e.g., advertising payments received by Seller prior to the Contribution Date, or, if not paid, Closing but relating to service to be provided by Purchaser after the amount due shall be reserved in cash within Closing) and (iii) all accrued expenses and trade accounts payable to the Owner as extent arising out of the Contribution Date. Prepaid charges under Project Contracts attributable to operations of the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period Business prior to the Contribution Closing that are outstanding as of 12:01 a.m. on the Closing Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 belowprovided that such Liabilities are assumed by Purchaser.
(e) Prepaid revenue received by the Owner attributable At least five (5) Business Days prior to the period after and including Closing Date, Seller will deliver to Purchaser a report with respect to the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues Systems (the “RentsPreliminary Report”), showing in detail the preliminary estimate of the adjustments referred to in Section 3.4(a)-(e) for the calendar month in which the Closing Date occurs (the “Closing MonthPurchase Price Adjustments”), and Rents not delinquent more than thirty days calculated in accordance with such Section as of the Closing Date (for those residents which remain in occupancy at or as of any other date(s) agreed to by the Projectparties), shall be prorated on an accrual basistogether with any documents substantiating the determination of the Purchase Price Adjustments proposed in the Preliminary Report. SCOLP shall either pay The Preliminary Report will include a Schedule setting forth advance payments and deposits made to or by Seller, as well as Accounts Receivable information relating to the Contributor or provide the Contributor with a credit for Systems (x) all unpaid Rents from tenants who are not delinquent more than thirty days showing sums due and their respective aging as of the Closing Date (for those residents which remain Date). The estimated Purchase Price Adjustments shown in occupancy the Preliminary Report will be reflected as adjustments to the Base Purchase Price payable at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition pursuant to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such RentsSection 3.4. In the event Purchaser objects to the Seller’s calculation of any Purchase Price Adjustment as set forth in the Preliminary Report, Purchaser shall deliver to the Seller at least two (2) Business Days prior to the Closing a written statement in reasonable detail describing any discrepancies believed to exist (“Purchaser Objection Notice”). Purchaser and Seller shall use their commercially reasonable efforts to resolve any of Purchaser’s objections to the Preliminary Report as described in Purchaser’s Objection Notice, and Seller shall make such revisions to the Preliminary Report as mutually agreed between Seller and Purchaser, and, if any changes are made, shall deliver a copy of such revised Preliminary Report to Purchaser no later than one (1) Business Day prior to the Closing. With respect to any of Purchaser’s objections that are not resolved before the Closing Date, the parties are unable to agreeshall proceed as follows: (i) if the aggregate amount of Purchaser’s unresolved objections is $100,000 or less, the Owner Closing shall apply any payments received during proceed with Seller’s estimate of such disputed amounts, and (ii) if the period aggregate of Purchaser’s unresolved objections are greater than $100,000, then the mid-point between the Closing Date aggregate of Purchaser’s unresolved objections and Seller’s estimate of such disputed amounts shall be used for purposes of proceeding to Closing. The amount used pursuant to subclause (i) or (ii) of this Section 3.4(e) shall be referred to as the date which is ninety “Estimated Adjustments Amount.”
(f) Within sixty (60) days after the Closing Date, first Purchaser shall deliver to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with Seller a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens report with respect to the Project Systems (the “Final Report”), showing in detail its determination of the Purchase Price Adjustments, together with any documents substantiating its calculation of the adjustments proposed in the Final Report. If Seller shall conclude that the Final Report does not accurately reflect the adjustments and prorations to be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior made to the Contribution DatePurchase Price in accordance with this Section 3.4, Contributor Seller shall, within thirty (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (9030) days after its receipt of the Closing either SCOLP Final Report, provide to Purchaser a written statement in reasonable detail describing any discrepancies believed to exist. Purchaser and Seller shall use good faith efforts to jointly resolve the discrepancies within fifteen (15) days of Purchaser’s receipt of Seller’s written statement of discrepancies, which resolution, if achieved, shall be binding upon all parties to this Agreement and not subject to dispute or Contributor discovers judicial review. If Purchaser and Seller cannot resolve the discrepancies to their mutual satisfaction within such 15-day period, Purchaser and Seller shall, within the following ten (10) days, shall jointly designate a nationally recognized independent accounting firm which is mutually agreeable to, and independent of each of, the parties (the “Independent Accountants”) to review the Final Report together with Seller’s discrepancy statement and any inaccuracies or errors in the pro rations or other relevant documents. The Independent Accountants shall report their conclusions as to adjustments done at Closing pursuant to Sections 6.1 and/or 6.2this Section 3.4 which shall be conclusive on all parties to this Agreement and not subject to dispute or judicial review absent clerical errors or fraud. If, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the after adjustment as appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and amount of the aforesaid adjustments done paid or credited at Closing pursuant the Closing, Purchaser or Seller is determined to Section 6.1owe an amount to the other, the appropriate party shall pay such amount thereof to the other, within three (3) Business Days after receipt of such determination. After The cost of retaining the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments Independent Accountants shall be in accordance with the terms of this Agreement, split equally between Purchaser and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement (Northland Cable Properties Seven Limited Partnership)
Adjustments and Prorations. 6.1 The following adjustments In addition to the costs and prorations expenses required to be paid in connection with the consummation of the transaction, which shall be made at paid by Purchaser and Seller as set forth in Section 6.5, the following matters and items shall be apportioned between the parties or, where appropriate, credited in total to a particular party, as of the Cut Off Time so that the Closing between SCOLP, Owner Date is a date of income and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.expense for Purchaser as provided below:
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion Accounts Receivable; Trade Accounts Payable. Seller shall retain all Accounts Receivable. Trade accounts payable shall be identified as of the Project Cut Off Time. Seller shall pay (or cause Manager to pay) all trade accounts due and payable as of the Cut Off Time that relate to matters arising or accruing prior to the Contribution Closing Date (other than current taxes), in the ordinary course when due and all special assessments levied on any portion of the Project prior to the Contribution Date, Purchaser shall be paid by Owner responsible for all such trade accounts payable that relate to matters arising or Contributor prior to the Contribution Date. Current real estate accruing from and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first . Revenue from room rentals (including food and beverage receivables charged to guest room accounts) (i.e. the guest ledger) shall belong to Seller to the cost of collecting such payments, then extent attributable to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after ClosingDate; provided, they shall remain however, revenues from room charges (less third party collection costs, including, but not limited to, credit card fees, travel agent fees or commissions and other similar charges) for the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after night immediately preceding the Closing Date shall be divided equally between Purchaser and Seller. Revenue from the responsibility Hotel attributable to food and beverages (including alcoholic beverages) and other sales or services through the close of Owner business for such food and beverage outlets or such other sales or service centers on the night (whether prior to or after the Cut Off Time) immediately preceding the Closing and Date shall not belong to Seller (such revenue to be charged to Contributor. Sums received determined based on account of such litigation shall also remain the property completion of the Owner night auditor’s run on the Closing Date). Thereafter, revenue from the Hotel attributable to food and beverage and other sales or services shall not be paid belong to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses Purchaser. Each of the Project which were paid prior to the Contribution Date Purchaser and for which Owner will benefit after the Contribution Date Seller shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due responsible for the payment of employment any sales, use, and/or hotel/motel occupancy taxes with respect thereto, shall be paid by Owner on collected or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs otherwise due and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date payable in connection with the transactions contemplated herein and the performance of its obligations revenue allocated to such party under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d7.1(a).
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLPSUI and the Company, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall be computed to, but not be an adjustment to including, the Units to be issued at ClosingClosing Date.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the each Project on or prior to the Contribution Date (other than current taxes)Closing Date, and all special assessments levied on any portion of the Project prior to the Contribution Closing Date (to the extent of installments thereof due on or prior to the Closing Date, ) shall be paid by Owner the Company on or Contributor prior to the Contribution Closing Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basisFurther, understanding that real estate all taxes in the State nature of Florida are payable rollback or similar taxes charged, assessed or levied based on the prior use or any change in arrears. Such proration use of the Land or Improvements prior to Closing shall be made on the basis obligation of the amount of Company. All real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes (the “Current Taxes”) levied against any portion of the each Project and applicable with respect to the period after applicable tax year in which the Contribution Date Closing occurs shall be prorated and adjusted between the parties such that the Company is responsible for that portion of the Current Taxes allocable to the period from the beginning of such tax year to the Closing Date, and SUI is responsible for that portion of the Current Taxes allocable to the period commencing on a calendar the Closing Date through the end of the tax year. In addition, if the Company or any Property Owner has paid any taxes or assessments for or in respect of tax years commencing after the Closing Date, then SUI shall be responsible for same and the amount thereof shall be credited to the Company at Closing. If the tax bills for the Current Taxes have not been issued by the Closing Date, the Company and SUI agree to prorate such Current Taxes on the basis of the taxes for the tax year basis immediately preceding the Closing for the purpose of computing the prorations under this Section 6.1(a), and to reprorate such Current Taxes at the request of either party promptly after the final bills for such Current Taxes are issued after Closing. The obligation to reprorate such Current Taxes will survive the Closing. Any refund or rebate of Current Taxes which is received by or payable to any Property Owner after the Closing shall be prorated between the Green Entities, on behalf of the Company, and SUI in the manner provided above promptly upon receipt. If there are any open appeals of real estate taxes or assessments for tax years prior to the tax year in which the Closing occurs, then the Green Entities, on behalf of the Company, shall be permitted to continue to prosecute and control such appeals at the Green Entities’ sole expense (and SUI covenants that it shall cause the applicable Property Owner, after Closing, to provide reasonable cooperation to the Green Entities to so prosecute and control such appeals); provided however, SUI have the right, at its expense, to participate in any proceeding which could reasonably be expected to affect any taxes required to be paid by Contributor any Property Owner on or SCOLPafter the date hereof and to consent to the settlement of any such proceeding and if the proceedings affect taxes and assessments for periods both before and after the Closing, as then the case may beparties will cooperate reasonably and the fees, costs and expenses of such proceeding shall be equitably allocated between the Green Parties and SUI. Further, if, after the Closing, any Property Owner receives or is entitled to receive any refund or rebate of taxes or assessments for periods prior to the tax year in which the Closing occurs, then upon receipt SUI shall pay the amount thereof directly to the Green Entities. The obligations of SUI under the preceding three sentences shall survive the Closing.
(b) The amount of all unpaid water and other utility bills for the each Project which are not directly billed to the tenants of the each Project, and all other operating and other expenses incurred with respect to the Project and Owner, and each Projects relating to the period prior to the Contribution Closing Date, shall be paid by Owner or Contributor the Company on or prior to the Contribution Closing Date or, if not paid, by the Green Entities as soon as possible after Closing following receipt of an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Dateinvoice therefor.
(c) Charges under Assumed Project Contracts (as defined in Section 7.1(f) below) attributable to the period prior to the Contribution Closing Date shall be paid by Owner or Contributor the Company prior to the Contribution Closing Date, or, if not paid, the amount due shall be reserved in cash within the Owner credited to SUI as of the Contribution Closing Date. Prepaid All charges under the Non-Assumed Project Contracts (as defined in Section 7.1(f) below) shall be paid by the Company or the Green Entities (if after Closing), whether such charges are attributable to the period prior to the Closing Date or the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Closing Date.
(d) All rental prepaid rental, pass-through charges, assessments and other revenues with respect to the operation of the Property collected by Owner the Company, the Holding Companies, or the Property Owners up to the Contribution Closing Date which are allocable to the period prior from and after the Closing Date shall be paid by the Company to the Contribution DateSUI. Current resident rents, including without limit pass-through charges and assessments shall be prorated and adjusted as of the date of Closing based upon the actual number of days in the month of Closing with SUI being credited for rents, pass-through charges and assessments on chargesthe date of Closing. In the event any pass-through charges (such as real estate taxes) are passed through to residents in the current year are based on a prior year’s amount without reconciliation with the residents, the amount actually used for the pass-through charge in the current year is the amount which shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received be prorated by the Owner attributable to Company and SUI under this paragraph (d) without any subsequent reconciliation between the period after Company and including the Contribution Date including, without limit, tenant rentsSUI. All rental, pass-through charges, pass-on charges, water assessments and other periodic revenues actually collected by SUI attributable to rent due for such month of Closing and received by SUI within sixty (the “Rents”60) for the calendar month in which days following the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project)Date, shall be prorated between the Green Entities and SUI based on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such monthmonth each owned each Project. SCOLP shall be paid or shall receive a credit for Except as provided in the pro rata share of the collected Rents received for the Closing Month. In addition preceding paragraph, to the foregoingextent SUI collects, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date within one hundred eighty (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days 180) after the Closing DateClosing, first to the cost of collecting such paymentsany rental, then to the most recent charges due andpass-through charges, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay assessments or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents revenues allocable to the period prior to the Closing Date are collected after ClosingDate, they SUI shall remain pay the property of same to the Owner and/or SCOLPGreen Entities and SUI shall use its good faith efforts to collect all such rent, and pass-through charges, assessments or revenues allocable to the period prior to the Closing Date, but SUI shall not be paid required to commence litigation or distributed institute evictions with respect to such tenants; provided, however, and except as otherwise set forth above, SUI is assuming no obligation whatsoever for the collection of such rentals, pass-through charges, assessments or revenues and all rentals, pass-through charges, assessments and revenues collected subsequent to the Contributor. The Owner Closing Date shall not distribute or assign always, in the first instance, be applied first to the Contributor most current rentals, pass-through charges, assessments and revenues, if any, then due under the Contributor Tenant Leases or otherwise. Further, the Company and/or the Green Entities shall not have the right to seek collection, through litigation or otherwise, of unpaid Rentsrent, pass-through charges or assessments from any person while they remain a tenant of a Project, nor shall the Company and/or the Green Entities institute any eviction or lockout proceedings against any residents to recover delinquent rents, pass-through charges or assessments. Any The Company, or the Green Entities following the Closing, shall retain one hundred (100%) percent of the right to receive any past due rents with respect to residents who are no longer residents of the Projects. Following Closing, SUI shall assume any eviction actions which are on-going as of the date of Closing Date and the expense shall assume responsibility for payment of any legal fees associated with such eviction actions incurred on and after the Closing Date, and sums received by SUI as a result of such eviction actions shall first be applied to reimburse SUI and Green Entities for legal fees incurred in connection with such actions and the balance of such amounts prorated between the Green Entities and SUI as provided above. Any pass-through charges or assessments that are paid by tenants at the Projects on an annual basis or other non-monthly basis shall be prorated based upon the actual number of days in the period in which the Closing occurs with SUI being credited for rents, pass-through charges and assessments on the date of Closing. Notwithstanding the foregoing, prior to Closing, in order to avoid the ongoing reconciliation described in this Section 6.1(d), SUI and the Company shall use good faith efforts to mutually agree upon terms by which SUI will have the right to retain all delinquent rents and receivables at the Projects collected after Closing in exchange for an agreed upon credit to the Company at Closing.
(e) Any Tenant Lease executed after the Effective Date and prior to the Closing Date shall be the responsibility executed in compliance with any applicable provisions of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property Exhibit I of the Owner and shall not be paid to the Contributor or otherwise subject to prorationOmnibus Agreement.
(f) An amount equal to all expenses of the Project Projects which were paid prior to the Contribution Closing Date and for which Owner SUI will benefit after the Contribution Closing Date including, without limitation, pre-paid taxes and assessments (if applicable), annual license and permit fees and pre-paid amounts (if any) under the Assumed Project Contracts, shall be disbursed or credited to Contributor the Company at the Closing, and an amount equal to all expenses of the Projects which were incurred prior to the Closing Date and are due or paid after the Closing Date shall be credited to SUI at the Closing and SUI shall cause all such expenses to be paid.
(g) All compensationThe credit to SUI, fringe benefits and other amounts due if any, payable in accordance with the employees of Owner or the manager of the Project for the period prior pre-closing operating covenants (attached to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes Omnibus Agreement) in connection with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
Capital Projects. (h) All costs and expenses incurred by Owner, the Company or any Holding Company or Contributor Property Owner prior to the Contribution Closing Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, fees and the costs and expenses payable by Owner, the Company or any Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor)Property Owner hereunder, shall be paid by Contributor the Company or the Green Entities (if after the Closing) and shall not be charged to, or the responsibility of SCOLPany Holding Company or Property Owner or SUI.
(i) The amount of all escrows and reserves required under All interest accrued for the Mortgage Documents which are on deposit on Assumed Debt up to the Contribution Closing Date shall be paid by SCOLP to the Contributor Property Owners who are the borrowers under the Assumed Debt on or before the Contribution Date Closing Date, or, if not paid, an amount equal to the entire amount of such escrows and reserves accrued interest shall be credited to Contributor in connection with SUI as of the cash adjustment at ClosingClosing Date.
(j) In All escrows and reserve accounts under the event any rental discountsAssumed Debt and the Mortgage Documents which will remain in place after the Closing for the benefit of SUI, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reasonHolding Companies, and the same have not been fully satisfied Property Owners and shall be credited by SUI to the Green Entities, on behalf of the Company, at the Closing.
(k) The Green Entities, SCOLP shall on behalf of the Company, will be entitled to a credit or payment at Closing in for any utility deposit, public improvement bond or similar refundable security posted for the amount benefit of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to any Project for which SUI receives the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payablebenefit after Closing.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Companyl) The Company shall be entitled to a distribution from cause each Property Owner and each Holding Company to directly or indirectly distribute to the Company prior to Closing, and the Company shall distribute to the Green Entities, all cash on hand, cash equivalents and other investments and assets, other than the Projects and related Improvements, the Personal Property or other Acquired Assets described in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Omnibus Agreement.
6.3 If 6.2 If, within ninety one hundred eighty (90180) days after the Closing Closing, either SCOLP SUI or Contributor discovers the Green Entities discover any inaccuracies or errors in the pro rations prorations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.26.1, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The In such event, the parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve such issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP SUI and Contributor the Green Entities shall promptly take all action and pay all sums necessary so that such pro rations prorations and adjustments completed pursuant to Section 6.1 hereof shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive 7 the Contribution Closing Date. Prorations and adjustments to prorations are not subject to, or included withinThe Company, the Minimum Amount Green Entities and SUI further acknowledge and agree that if neither party has identified an inaccuracy or Maximum Amount set forth error in the prorations or adjustments completed pursuant to Section 7.3(d6.1 within such one hundred eighty (180) days, the obligation to complete a post-closing adjustment shall be deemed null and void and of no further force and effect; provided, however, that the 180-day period in this Section 6.2 shall not apply to the reproration of Current Taxes under Section 6.1(a), which will be effected promptly after the issuance of the final tax bills for the Current Taxes.
Appears in 1 contract
Sources: Merger Agreement
Adjustments and Prorations. 6.1 The following 1. To the extent applicable, real estate taxes, sewer rents and taxes, water rates and charges, vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments levied or assessed against the Premises (collectively, "Real Estate Taxes") shall be prorated based upon the lien year for which assessed. Seller shall be responsible for that portion of Real Estate Taxes allocated to any period to but not including the date of Closing, and Purchaser shall be responsible for that portion of Real Estate Taxes allocable to any period from and after the date of Closing. If any Real Estate Tax rate or assessed valuation has not been set for any portion of the fiscal year in which the Closing occurs, then the proration of such Real Estate Tax shall be based upon the rate and assessed valuation for the preceding lien year or period, and such proration shall be readjusted between Seller and Purchaser as soon as the rate or assessed valuation is fixed. Notwithstanding anything to the contrary, in the event the Seller receives a refund or return of taxes paid for any portion of Real Estate Taxes allocated to any period from and after the date of Closing, the period for which the Purchaser shall have provided the Seller a credit at the Closing, the Seller shall immediately forward such funds to the Purchaser.
2. Accrued and pre-paid operating expenses of the Property and such other items as are customarily apportioned in real estate closings of commercial properties in the County of Suffolk, State of New York shall be prorated as of midnight of the day prior to the Closing Date. Seller shall be responsible for all operating expenses of the Property attributable to periods to, but not including, the date of Closing, and Purchaser shall be responsible for all customary operating expenses of the Property attributable to periods from and after the date of Closing. To the extent that the amount of actual consumption of any utility services for the Premises or of water, electricity and/or fuel for the Premises is not determined as of the date of Closing, a proration shall be made at Closing based on the last available meter or other available reading and post-closing adjustments between Purchasers and prorations Seller shall be made within twenty (20) days of the date that actual consumption for the period including the date of Closing is determined, which obligation shall survive the Closing.
3. In the event the apportionments to be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made as evidenced by a cash payment and jointly prepared closing statement result in a credit balance (i) to Purchaser, such sum may be paid (at Seller's option) at the Closing in good funds or by giving Purchaser a credit against the Purchase Price in the amount of such credit balance, or (ii) to Seller, Purchaser shall not be an adjustment pay the amount thereof to Seller at the Units to be issued at Closing.
4. If at any time following the Closing Date, the amount of any item apportioned pursuant to this Article III shall prove to be incorrect up to a period of six (a6) Real estate taxes months thereafter (whether as a result of an error in calculation or a lack of complete and personal property taxes which are a lien upon or levied against any portion accurate information as of the Project prior to the Contribution Date (other than current taxes)Closing) or, and all special assessments levied on any portion of the Project prior to the Contribution Dateif based upon an estimate, shall be paid by Owner finalized, then the party in whose favor the error was made or Contributor prior the party receiving an excess credit based upon the estimate shall promptly pay to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at other party the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of sum necessary to correct such error or the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLPexcess credit, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants , in either case after receipt of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Daterelevant documentation.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Contract of Sale
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a1) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of 11:59 P.M. on the date immediately preceding the Closing Date on a calendar year basis, understanding that real estate taxes in (the State of Florida are payable in arrears. Such proration shall be made "Proration Date") on the basis of the taxes paid for the most recent tax year with maximum discount allowed (i.e., as if taxes were paid in November of the year for which the tax is assessed). Notwithstanding anything in this Agreement or any of the documents to be delivered by Seller at closing to the contrary, Seller shall reserve and retain the right, but not the obligation, to challenge the amount of real estate taxes and personal property taxes assessed value of the Property for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current 1997 tax year plus an estimated increase of 5%as well as prior tax years (the "Tax Protest") and Purchaser agrees to reasonably cooperate with Seller in any such Tax Protest. Real estate taxes If Seller's Tax Protest is successful, Seller shall be entitled to be reimbursed for its reasonable fees and personal property taxes levied against costs incurred in connection with the Tax Protest and, after Seller's reimbursement for its reasonable fees and costs, any remaining portion of the Project tax refund shall be apportioned between Seller and applicable to Purchaser on the period after basis of the Contribution Proration Date.
(2) Certified, confirmed and ratified governmental liens as of the Proration Date shall be paid by Seller. Pending liens as of the date of closing shall be assumed by Purchaser.
(3) Rent and other income or charges received under Leases in effect on the Closing Date shall be prorated and adjusted between through the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which Proration Date. Rents are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor delinquent when payment thereof is due on or prior to the Contribution Date orClosing Date, if but has not paidbeen made by the Closing Date. As to any Rents which are less than thirty (30) days delinquent, an amount equal the Purchaser shall, from the first sums received from any delinquent tenant, remit any moneys due Seller, as they are collected, to such unpaid expenses shall be part of the cash adjustment at ClosingSeller. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with With respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date any Rents which are allocable delinquent for at least thirty (30) days, Seller shall not be entitled to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement receive such moneys from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) those delinquent tenants whose Rent is delinquent for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty (30) days as of the Closing Date (unless such tenants are current in their rental obligations for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents periods occurring from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing Purchaser shall not be subject required to pro rationinitiate or pursue any collections on behalf of Seller or terminate any Lease to comply with this provision. Contributor With respect to accounts receivable attributable to sums to which Seller shall have no further rights following Closing be entitled hereunder, Purchaser agrees that it will not waive nor settle any claim with respect to such Rentsreceivables without the prior written consent of Seller. In addition Purchaser agrees that any payments due to Seller as a result of collected delinquent rentals shall be payable by Purchaser to Seller upon receipt thereof.
(4) Utilities bills shall be prorated through the Proration Date with Seller responsible for utilities up to the foregoing, SCOLP shall also pay or provide Contributor with a credit Proration Date and Purchaser responsible for utilities for the amount of accrued but unpaid utility fees due from period after the tenants with respect to periods prior to ClosingProration Date. To the extent that any Rents allocable utility bills are not the direct responsibility of any tenant, Seller shall use reasonable efforts to transfer, to the period prior extent transferable, all utilities to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going Purchaser's name as of the Closing Date and to receive a direct final ▇▇▇▇ from the expense provider of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility utilities outside of Owner after Closing and shall not be charged to Contributorclosing. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the If utility ▇▇▇▇▇▇▇▇ Entities hereunder. The Owner or meter readings as of the Proration Date are not available for any utility service, the charges therefor shall not distribute any other rightbe adjusted at the closing on the basis of the per diem charges for the most recent prior period for which bills were issued, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If and shall be further adjusted within ninety (90) days after the Closing Date on the basis of the actual bills for the current period. To the extent that any expenses paid by Seller are reimbursable by tenants, Purchaser shall collect such reimbursements on behalf of Seller and promptly remit such amounts to Seller upon receipt.
(5) All Contracts and other items normal to the operation and maintenance of the Property which require payments either SCOLP in advance or Contributor discovers in arrears for periods which begin prior to the Proration Date or end thereafter and any inaccuracies items of miscellaneous income attributable to the Property shall be prorated between Seller and Purchaser as of the Proration Date with Seller responsible for the period through the Proration Date and Purchaser for the period after the Proration Date. To the extent that any expenses paid by Seller are reimbursable by Tenants, Purchaser shall collect such reimbursements on behalf of Seller and promptly remit such amounts to Seller upon receipt.
(6) Any tenant security deposits to the extent not previously utilized by Seller and prepaid rents are to be paid or errors credited to Purchaser at Closing. Purchaser agrees that if Seller gives Purchaser a list of the tenants entitled to receive the return of a security deposit and the amount of the security deposit that is to be returned to the applicable tenant, and if the aggregate amount of all security deposits to be returned to all of the tenants is less than or equal to the tenant security deposits paid to Purchaser at Closing, then Purchaser shall indemnify Seller for the failure to pay such security deposits described in the pro rations or adjustments done list to the tenant(s) at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail expiration of the appropriate calculation. The parties tenant's Lease and such indemnity shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments survive Closing.
(7) Purchaser shall be responsible for the leasing commissions, tenant improvements costs, space planning and architectural costs outstanding, as described in accordance with the terms Section 5.D(2) of this Agreement, for any new Lease or modification of any existing Lease entered into after the Effective Date. Notwithstanding the foregoing, any real estate commissions, tenant improvement costs, space planning and architectural costs which arise as a result of a renewal of any Lease after the Closing shall be the responsibility of Purchaser even if the Lease was executed prior to the Effective Date and the obligations Lease contained a renewal option.
(8) Seller shall be responsible for and shall pay at the closing, the leasing commissions, tenant improvement costs, space planning and architectural costs, for any Lease or modification of either party Lease executed prior to pay the Effective Date of this Agreement. If a Lease is modified after the Effective Date, then Purchaser shall be responsible for the leasing commissions, tenant improvement costs, space planning and architectural costs relating to the modification.
(9) The amounts of any deposits held by utilities or other persons or entities which are assigned by Seller to Purchaser at the closing shall be reimbursed by Purchaser to Seller at the Closing.
(10) Except as otherwise specifically provided in the Agreement, all other items of income and expenses pertaining to the Property shall be prorated as of the Proration Date.
(11) Any such amount adjustments not determined or not agreed upon as of the Closing Date shall survive the Contribution Date. Prorations and adjustments be paid by Purchaser to prorations are not subject toSeller, or included withinby Seller to Purchaser, as the Minimum Amount or Maximum Amount set forth case may be, in Section 7.3(d)cash as soon as practicable following the Closing Date but in no event later three (3) months after the Closing Date.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Dean Witter Realty Growth Properties L P)
Adjustments and Prorations. 6.1 The following adjustments Adjustments and prorations with respect to the Property shall be made at computed and determined between the parties as of 12:01 a.m. on the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.Date as follows:
(a) Real General real estate taxes taxes, special assessments and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date based on the then current taxes (if known, based on final tax bills for such period -- and if not known, based on the most recent ascertainable taxes) and the special assessments due and owing prior to Closing, and Seller or Purchaser shall receive a calendar year basiscredit at Closing, understanding that real estate as appropriate. If final taxes in or special assessments are not known as of the State Closing, the parties agree to reprorate when such amounts become known, but no later than ninety (90) days after issuance of Florida are payable in arrearsthe final tax ▇▇▇▇.
(b) Seller shall have the right to contact tenants to reconcile CAM, taxes and other pass-throughs and additional rent with respect to the Property including delinquent rentals after the Closing Date and institute legal proceedings to collect such amounts, if necessary. Such proration Any such enforcement or collection efforts by Seller shall be made on at Seller's sole expense.
(c) All amounts payable, owing or incurred in connection with the basis Property under the Contracts to be assumed by Purchaser under the Assignment and Assumption shall be prorated as of the Closing Date.
(d) All 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.
(e) The ▇▇▇▇▇▇▇ Money (unless previously disbursed to Seller) shall be paid to Seller at Closing. Purchaser shall be entitled to a credit against the Purchase Price in the amount of real estate and personal property taxes for the current year if and ▇▇▇▇▇▇▇ Money paid to Seller or credited against the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLPPurchase Price, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(df) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall utility charges will be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also Seller will obtain a final billing therefor and pay or provide Contributor with a credit any amounts owing therein for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected and Purchaser shall pay any amounts owing for the period on and after Closingthe Closing Date. To the extent that utility bills cannot be handled in the foregoing manner, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going prorated as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit based on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to most recent bills available and reprorated when such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within final bills become known but no later than ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2Date.
(g) A credit, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attemptif applicable, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with Section 11(a) above.
(h) Unless provided otherwise hereinabove, such other items as are customarily prorated in a purchase and sale of the terms type contemplated hereunder shall be prorated as of the Closing Date.
(i) Each of the provisions of this Agreement, and the obligations of either party to pay any such amount Section 14 shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)Closing.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Credence Systems Corp)
Adjustments and Prorations. 6.1 The following adjustments and prorations 5.1 Seller shall be made at entitled to all income produced from the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion operation of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date Property which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after and shall be responsible for all expenses allocable to that period; and Buyer shall be entitled to all income and responsible far all expenses allocable to the period beginning at 12:01 A.M. on the Closing Date. At Closing, they all items of income and expense with respect to the Property shall remain be prorated in accordance with the property foregoing provisions and the rules for the specific items set forth hereafter:
5.1.1 Seller shall arrange for a billing under all those Service Contracts for which fees are based on usage and with utility companies for a billing for utilities, to include all utilities or service used up to the Closing Date, and Seller shall pay the resultant bills. In the event any of the Owner Service Contracts set forth in EXHIBIT 3 cover periods beyond the Closing Date the same shall be prorated on a per diem basis.
5.1.2 Real estate taxes, general, special and/or SCOLPbetterment assessments and personal property taxes shall be prorated for those taxes which are due and payable as of the Closing Date. In the event that as of the Closing Date the actual tax bills for the tax year or years in question are not available and the amount of taxes to be prorated as aforesaid cannot be ascertained, then rates, millages and assessed valuation of the previous year, with known changes, shall be used; and after the Closing occurs and when the actual amount of taxes for the year or years in question shall be determinable, such taxes will be re-prorated between the parties to reflect the actual amount of such taxes.
5.1.3 Rentals and other payments (other than "percentage rent" and common area maintenance charges which are dealt with in SECTION 5.1.4 and SECTION 5.1.6) which are payable pursuant to Space Leases shall be prorated on a per diem basis as and when collected (subject to the provisions of Section 5.3). Buyer shall not be obligated to make any payment or give any credit to Seller on account of or by reason of any rental or other payments which are unpaid as of the Closing Date, but shall be required to turn over Seller's share of the same within ten (10) days if, as and when received by Buyer after the Closing; likewise, Seller agrees to turn over Buyer's share of any payments received from tenants applicable to any period from and after the date of Closing within ten (10) days of Seller's receipt of same; this provision shall survive Closing.
5.1.4 Percentage rent; if any, payable under each Space Lease shall be prorated with respect to the lease year thereunder in which Closing occurs on a per diem basis as and when collected. Any percentage rent collected by Buyer including any percentage rent which is delinquent and pertaining to (i) an entire lease year or accounting period of a tenant under a Space Lease which ends on a date prior to the Closing Date, or (ii) that portion of a lease year or accounting period of such tenant covering a period prior to the Closing Date where such lease year or accounting period begins prior to the Closing Date and ends thereafter shall in both cases be paid to Seller within ten (10) days of receipt by Buyer; and if any tenant's Space Lease provides for offsets or distributed deductions against percentage rent, then such offsets or deductions shall be prorated in the same manner as the percentage rent itself is prorated. This provision shall survive Closing.
5.1.5 Gas, water, electricity, heat, fuel, sewer and other utilities charges to which SECTION 5.
1.1 cannot be applied, and the governmental licenses, permits and inspection fees and operating expenses relating to the ContributorShopping Center (expressly excluding therefrom, however, such expenses relating to the initial construction of the Shopping Center), shall be prorated on a per diem basis.
5.1.6 Common area maintenance expenses and charges shall be prorated. The Owner Seller shall be responsible for all common area expenses and charges incurred prior to the Closing Date, and Buyer shall be responsible for the same accruing on and subsequent to the Closing Date. All common area expense payments made by each tenant and such charges paid under its Space Lease for the entire lease year during which the Closing occurs, including end-of-year adjustments, if any, shall be prorated between Seller and Buyer in the following manner: Not later than three (3) days prior to Closing, Seller shall deliver to Buyer, with regard to each Shopping Center tenant required to pay common area charges ("CAM Charges") under its lease, a detailed computation showing all CAM Charge expenses incurred by Seller for the period from the beginning of each such tenant's then current billing period for CAM Charges (e.g., calendar year, lease year, etc.) through the Closing Date, any CAM estimated payments or charges collected by Seller relating to such tenant (hereinafter "CAM Estimates"), and a ▇▇▇▇ for the tenant's pro rata share of CAM Charges (i.e., for CAM charges through the Closing Date net of any such CAM Estimates held by Seller), together with all invoices and other evidence documenting such CAM Charges in detail required by such tenant's lease. Buyer shall send any such bills to tenants promptly following Closing, in which event such tenant shall pay any amount shown due directly to Seller, and except as otherwise stated in Section 5.3.3 below Buyer shall have no responsibility to collect same. However, if any tenant rightfully refuses to pay such ▇▇▇▇ for CAM Charges due through the Closing Date, then Buyer shall resubmit such ▇▇▇▇ to any such tenant at the same time as Buyer next submits Buyer's own ▇▇▇▇ to any such tenant; and any payment thereafter made by any such tenant on account of CAM Charges shall belong to and be forwarded within ten (10) days of its receipt to Seller until Seller's ▇▇▇▇ is paid in full. Any CAM Estimates for any tenant shall be retained by Seller up to the amount of the pre-Closing CAM Charges payable by such tenant as evidenced by such bills and computations delivered by Seller at Closing, and Buyer shall receive a credit for any excess CAM Estimates collected by Seller.
5.1.7 All prepaid rentals, other prepaid payments (other than monthly real estate tax estimates or installments), security deposits paid pursuant to Space Leases, electric, gas, sewer and water deposits deposited with Seller by tenants, (including any accrued interest required under any Space Lease on all of the foregoing, unless Seller is entitled to retain the benefit thereof) under any Space Leases, license agreements or concession agreements relating to the Property, shall all belong to Buyer and all shall be assigned and delivered to Buyer at Closing, whereupon Seller shall be released from all liability with respect thereto. At Seller's option, Buyer shall receive a cash credit in the amount of all Security Deposits to be delivered to Buyer at Closing, and Seller may retain same.
5.1.8 Buyer shall not distribute be responsible for any charges, salaries, vacation pay or assign fringe benefits of employees of Seller prior to or following the Closing and none of the foregoing shall be prorated.
5.2 All prorations and payments to be made under the foregoing provisions shall be made on the basis of a written statement or statements delivered to Buyer by Seller and approved by Buyer. In the event any prorations, apportionments or computation shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same, provided that it makes written demand on the one from who it is entitled to such adjustment within two (2) years after the erroneous payment or computation was made; this provision shall survive Closing.
5.3 All accounts receivable flowing from the Property shall be treated as follows:
5.3.1 Buyer and Seller agree to treat all base or minimum rental payments received from a tenant as applicable to base or minimum rent which was owed by that tenant, if any, first for the month prior to the Contributor month in which Closing occurs and next for the month in which Closing occurs until the base or minimum rental amount due to Seller for such periods have been collected. In the event that there remains any unpaid base or minimum rent for a period prior to such periods, all payments of base or minimum rent received from such tenant shall be applied to sums owed Buyer before any part thereof shall be treated as belonging to Seller. In the event that there remains any unpaid tenant receivable other than base or minimum rent (including without limitation any tax, CAM, insurance or percentage rent payments) for any period prior to Closing, all payments received from any tenant in arrears (whether base or minimum rent or any other amount) shall be applied first to any such sums owed Buyer from such tenant before any part thereof shall be treated as belonging to Seller.
5.3.2 In the event that any tenant of Seller or Buyer shall hereafter apply or shall have heretofore applied for relief under the provisions of any bankruptcy or similar laws for the protection of debtors, the provisions of SECTION 5.3.1 shall not apply, and the Contributor parties shall not have the right to seek collectioncollection of their respective accounts, through litigation or otherwisetheir entitlements being determined by the Closing and the other provisions of this Agreement. Neither party shall have the right to enter into any transactions that purport to compromise claims belonging to the other, of unpaid Rents. Any eviction actions which are on-going as of without the other party's prior written consent.
5.3.3 If at the Closing Date and any tenants owe Seller any money (i.e. reimbursements to Seller for payment of liens or violations on the expense Property that were created by tenant(s) but that Seller is required hereunder to satisfy in order to effectuate the sale of the Property), Seller shall have the right, subsequent to the Closing, to collect such sums directly from the tenants, including bringing lawsuits against the tenants (at Seller's sole expense) for such collection (except that Seller is prohibited from bringing a lawsuit against any tenant(s) to collect rent arrears; instead Buyer agrees to use commercially reasonable efforts to collect such arrears on Seller's behalf); provided, however, Seller agrees that any such legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and action or collection shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property include any disturbance of the Owner and shall not be paid possession, use or occupancy of the tenants or any right to evict the tenants, whether pursuant to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions lease provisions or otherwise, and all amounts due for Buyer shall at Seller's expense join in any lawsuit and/or also participate or cooperate with Seller in its collection attempts. Buyer will (at Seller's expense) join in such a lawsuit or action only if the payment same does not include or require disturbance of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closingpossession of any tenants.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) 5.3.4 In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided Seller has granted rent concessions to any of tenants under space lease(s) that would extend beyond the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien Buyer shall receive credit for taxes not yet due and payablesame.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. 5.4 The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date provisions of this AgreementArticle 5 will survive Closing.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Agreement of Sale (Inland Western Retail Real Estate Trust Inc)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes The Base Purchase Price shall be adjusted such that all revenues, expenses and personal property taxes which are a lien upon or levied against any portion of other Liabilities arising from the Project prior to System up until 12:01 a.m. on the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Closing Date, shall be paid by Owner or Contributor prior including subscriber and advertising revenues, franchise fees, pole and other rental charges payable with respect to the Contribution Date. Current cable television service, utility charges, real estate and personal property taxes and assessments levied against the Purchased Assets, salesperson advances, property and equipment rentals, applicable copyright or other fees, sales and service charges, Taxes (except for Taxes arising from the transfer of the Purchased Assets hereunder which are covered by Section 11.1(b)), and similar prepaid and deferred items, shall be prorated at between Purchaser and Seller in accordance with the principle that Seller shall be responsible for all expenses, costs and Liabilities and entitled to all revenues allocable to the conduct of the Business for the period prior to the Closing effective as Date, and Purchaser shall be responsible for all expenses, costs and obligations and entitled to all revenues allocable to the conduct of the Business on the Closing Date on a calendar year basisand for the period thereafter, understanding that real estate taxes in the State all of Florida are payable in arrears. Such proration which shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may bedetermined in accordance with GAAP.
(b) The amount of all unpaid water and other utility bills for At Closing, the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, Base Purchase Price shall be paid increased by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part (i)(A) 100% of the cash adjustment at Closing. The face amount of all prepaid water Accounts Receivable other than those related to advertising services that are outstanding on the Closing Date and have been outstanding for 30 days or less from the first day of the period to which any outstanding ▇▇▇▇ relates, (B) 90% of the face amount of all Accounts Receivable other utility bills for than those related to advertising services that are outstanding on the ProjectClosing Date and have been outstanding more than 30 days but less than 60 days from the first day of the period to which any outstanding ▇▇▇▇ relates, and (C) 0% for all Accounts Receivable other operating than those related to advertising services that are outstanding on the Closing Date and other expenses have been outstanding more than 60 days from the first day of the period to be incurred with respect which any outstanding ▇▇▇▇ relates, (ii) (A) 90% of the face amount of all Accounts Receivable related to advertising services provided by Seller prior to the Project Closing Date that are outstanding on the Closing Date and Owner, and relating to have been outstanding for 90 days or less from the first day of the period after to which any outstanding ▇▇▇▇ relates and including the Contribution Date, shall be paid by SCOLP (B) 0% for all Accounts Receivable related to Contributor such advertising services that are outstanding on the Contribution DateClosing Date and have been outstanding more than 90 days from the first day of the period to which any outstanding ▇▇▇▇ relates.
(c) Charges under Project Contracts (At Closing, the Base Purchase Price shall be increased by an amount equal to 100% of the face amount of all payments and sums deposited or advanced by Seller to a landlord, utility, Governmental Body or any other party as defined below) attributable a security deposit or in exchange for initiation of a service and which will inure to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as benefit of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution DatePurchaser.
(d) All rental and other revenues collected At Closing, the Base Purchase Price shall be reduced by Owner up an amount equal to the Contribution Date which are allocable to the period (i) any customer advance payments (i.e., customer payments received by Seller prior to the Contribution Closing Date but relating to service to be provided by Purchaser after the Closing Date) and deposits (including any interest owing thereon), (ii) except as set forth in Section 3.4(c), above, any other advance payments (e.g., advertising payments received by Seller prior to the Closing Date but relating to service to be provided by Purchaser after the Closing Date) and (iii) all accrued expenses, trade accounts payable and other accrued current Liabilities of Seller to the extent arising out of the operations of the Business prior to the Closing Date that are outstanding as of 12:01 a.m. on the Closing Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 belowprovided that such Liabilities are assumed by Purchaser.
(e) Prepaid revenue received At Closing, the Purchase Price will be decreased or increased, based on the difference between 6,911 and the number of RGUs on the Closing Date, in the manner set forth in subsections (i) and (ii) hereto. All calculations made with respect to the number of RGUs will be calculated on a consistent basis.
(i) If the Closing Date RGUs are less than 6,565 (that being less than 95 percent of 6,911), the Purchase Price shall be reduced by an amount equal to the Price Per RGU multiplied by the Owner attributable difference between (A) 6,565, and (B) the Closing Date RGUs.
(ii) If the Closing Date RGUs are greater than 7,257 (that being greater than 105 percent of 6,911), the Purchase Price shall be increased by an amount equal to the period after Price Per RGU multiplied by the difference between (A) 7,257, and including (B) the Contribution Closing Date includingRGUs.
(f) At least five Business Days prior to the Closing Date, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues Seller will deliver to Purchaser a report with respect to the System (the “RentsPreliminary Report”) for ), showing in detail the calendar month preliminary estimate of the adjustments referred to in which the Closing Date occurs this Section 3.4 (the “Closing MonthPurchase Price Adjustments”), and Rents not delinquent more than thirty days calculated in accordance with such Section as of the Closing Date (for those residents which remain in occupancy at or as of any other date(s) agreed to by the Projectparties), shall be prorated on an accrual basistogether with any documents substantiating the determination of the Purchase Price Adjustments proposed in the Preliminary Report. SCOLP shall either pay The Preliminary Report will include a Schedule setting forth advance payments and deposits made to or by Seller, as well as Accounts Receivable information relating to the Contributor or provide the Contributor with a credit for System (x) all unpaid Rents from tenants who are not delinquent more than thirty days showing sums due and their respective aging as of the Closing Date (for those residents which remain Date). The estimated Purchase Price Adjustments shown in occupancy the Preliminary Report will be reflected as adjustments to the Base Purchase Price payable at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition pursuant to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rentsthis Section 3.4. In the event Purchaser objects to Seller’s calculation of any Purchase Price Adjustment as set forth in the Preliminary Report, Purchaser shall deliver to Seller at least two Business Days prior to the Closing a written statement in reasonable detail describing any discrepancies believed to exist (“Purchaser Objection Notice”). Purchaser and Seller shall use their commercially reasonable efforts to resolve any of Purchaser’s objections to the Preliminary Report as described in Purchaser’s Objection Notice, and Seller shall make such revisions to the Preliminary Report as mutually agreed between Seller and Purchaser, and, if any changes are made, shall deliver a copy of such revised Preliminary Report to Purchaser no later than one Business Day prior to the Closing. With respect to any of Purchaser’s objections that are not resolved before the Closing Date, the parties are unable to agreeshall proceed as follows: (i) if the aggregate amount of Purchaser’s unresolved objections is $100,000 or less, the Owner Closing shall apply any payments received during proceed with Seller’s estimate of such disputed amounts, and (ii) if the period aggregate of Purchaser’s unresolved objections are greater than $100,000, then the mid-point between the Closing Date aggregate of Purchaser’s unresolved objections and Seller’s estimate of such disputed amounts shall be used for purposes of proceeding to Closing. The amount used pursuant to subclause (i) or (ii) of this Section 3.4(f) shall be referred to as the date which is ninety “Estimated Adjustments Amount.”
(g) Within 60 days after the Closing Date, first Purchaser shall deliver to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with Seller a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens report with respect to the Project System (the “Final Report”), showing in detail its determination of the Purchase Price Adjustments, together with any documents substantiating its calculation of the adjustments proposed in the Final Report. If Seller shall conclude that the Final Report does not accurately reflect the adjustments and prorations to be made to the Purchase Price in accordance with this Section 3.4, Seller shall, within 30 days after its receipt of the Final Report, provide to Purchaser a written statement in reasonable detail describing any discrepancies believed to exist. Purchaser and Seller shall use good faith efforts to jointly resolve the discrepancies within 15 days of Purchaser’s receipt of Seller’s written statement of discrepancies, which resolution, if achieved, shall be fully paid binding upon all parties to this Agreement and satisfied not subject to dispute or credited or paid judicial review. If Purchaser and Seller cannot resolve the discrepancies to SCOLP on their mutual satisfaction within such 15-day period, Purchaser and Seller, within the Contribution Datefollowing 10 days, except only shall jointly designate a nationally recognized independent accounting firm which is mutually agreeable to, and independent of each of, the Existing Mortgage parties (the “Independent Accountants”) to review the Final Report together with Seller’s discrepancy statement and the lien for taxes not yet due and payable.
6.2 On or prior any other relevant documents. The Independent Accountants shall report their conclusions as to the Contribution Date, Contributor (directly or indirectly through the Holding Company) adjustments pursuant to this Section 3.4 which shall be entitled conclusive on all parties to a distribution from Owner in an amount equal this Agreement and not subject to all of the cash and cash equivalent assets held by Owner as of the Contribution Datedispute or judicial review absent clerical errors or fraud. If, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the adjustment as appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and amount of the aforesaid adjustments done paid or credited at Closing pursuant the Closing, Purchaser or Seller is determined to Section 6.1owe an amount to the other, the owing party shall pay the amount owed to the other party, within three Business Days after receipt of such determination. After The cost of retaining the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments Independent Accountants shall be in accordance with the terms of this Agreement, split equally between Purchaser and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement (Northland Cable Properties Seven Limited Partnership)
Adjustments and Prorations. 6.1 The following adjustments Adjustments and prorations with respect to the Property shall be made at computed and determined between the parties as of 12:01 a.m. Mountain Time on the Closing between SCOLPDate as follows:
6.3.1 General real estate taxes, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes special assessments and personal property taxes which are a lien upon or levied against any portion shall be prorated as of the Project Closing Date, and Seller or Purchaser shall receive a credit at Closing, as appropriate. Without affecting the obligations set forth in this Section 6.3.1, the prorations for real and personal property taxes shall be equitably adjusted to reflect any such items directly paid by tenants to the applicable third-party payees. If final taxes or special assessments attributable to 2013 (and commonly payable in 2014) are not known as of the Closing, the parties agree to reprorate when such amounts become known. At Closing, Purchaser shall receive a per diem credit for 2013 taxes based on the known 2012 tax bills with the 2013 amount being subject to reproration once the final 2013 bills are available, provided however that Seller shall not be responsible for any increases in such taxes resulting from the sale contemplated hereby. Seller has paid or shall pay prior to the Contribution Date (other than current taxes), and Closing all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current 2012 real estate and personal property taxes taxes.
6.3.2 All rents and assessments shall other sums ("Rents") received from tenants of the Property prior to Closing will be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue Rents received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who that are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable attributable to the period prior to the Closing Date will be retained by Seller. All Rents that are collected attributable to the period on and after the Closing Date will be paid to Purchaser by the tenants or, to the extent received by Seller, credited to Purchaser at Closing, they shall remain the property of the Owner and/or SCOLP, and . Seller shall not be paid entitled to any credits at Closing for any unpaid or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going delinquent rents as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred Date. All Rents received by Seller on and after the Closing Date shall be the responsibility of Owner after Closing held in trust by Seller for Purchaser and shall not be charged promptly delivered to ContributorPurchaser by Seller for application as provided in this Section 6.3.2. Sums All Rents received by or credited to Purchaser on account and after the Closing Date, shall be applied (i) first to Rents due under the Leases attributable to the period on and after the Closing Date and (ii) then to any delinquent Rents due to Seller. Purchaser shall use commercially reasonable efforts (without litigation) to collect or attempt to collect delinquent Rents, which efforts shall be limiting to invoicing the tenant therefor. Any reasonable out-of-pocket costs incurred by Purchaser in collection of delinquent Rents shall be deducted by Purchaser prior to payment to Seller. If Purchaser has been unable to collect any delinquent Rents (attributable to the period prior to Closing) within forty-five (45) days after Closing, Seller shall have the right to contact tenants to request payment of delinquent Rents after the Closing Date and to institute legal proceedings solely limited to Seller obtaining a monetary judgment for such litigation delinquent Rents and amounts and costs associated therewith.
6.3.3 Any security deposits of tenants that are held by Seller will be credited to Purchaser. Any letters of credit that are security deposits will be transferred to Purchaser at Closing.
6.3.4 All amounts payable, owing or incurred in connection with the Property under the Contracts and Telecommunications Licenses to be assumed by Purchaser under the Assignment and Assumption of Contracts and Warranties described in Section 9.2.4 shall also remain the property be prorated as of the Owner Closing Date, and Seller shall not be responsible for all amounts payable under the Contracts which are to be terminated as of Closing pursuant to Section 4.5.
6.3.5 Seller shall be credited for any utility deposits transferred hereunder. All other utility deposits may be withdrawn by and refunded to Seller, and Purchaser shall make its own replacement deposits for utilities as may be required by the applicable utilities.
6.3.6 The Deposit shall be paid to Seller as a credit against the Contributor or otherwise subject to prorationPurchase Price.
(f) An amount equal 6.3.7 All utility charges that are not separately metered to all expenses of the Project which were paid prior tenants will be prorated to the Contribution Date Closing Date. Seller will obtain a final billing therefor and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other pay any amounts due the employees of Owner or the manager of the Project owing for the period prior to the Contribution Closing Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all . Purchaser shall pay any amounts due owing for the payment of employment taxes with respect theretoperiod on and after the Closing Date. To the extent that utility bills cannot be prorated in the foregoing manner, they shall be paid by Owner prorated as of the Closing Date based on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability most recent bills available and re-prorated when the final bills are received.
6.3.8 Leasing Costs shall be paid allocated as set forth in cash at ClosingSection 6.4.
(h) All 6.3.9 Unless provided otherwise hereinabove, such other items which are customarily prorated in a purchase and sale of the type contemplated hereunder shall be prorated as of the Closing Date.
6.3.10 Seller is currently collecting from tenants additional Rents to reimburse taxes, insurance, utilities, maintenance and other operating costs and expenses (collectively, "Pass Through Charges") incurred by Owner, the Holding Company or Contributor prior to the Contribution Date Seller in connection with the transactions contemplated herein ownership, operation, maintenance and management of the performance Property. Certain Pass Through Charges have been estimated. The Pass Through Charges will be prorated as of its obligations under this Agreementthe Closing Date based on the current estimates used by Seller. However, includingwith respect to actual Pass Through Charges not known as of the Closing Date, without limitation, attorney and other professional fees, Purchaser will prepare operating expense statements for the Acquisition LoanProperty for the calendar year in which the Closing occurs ("Reconciliation Statement") within 90 days following the end of the calendar year in which the Closing occurs. Seller will cooperate with Purchaser in Purchaser’s preparation of the Reconciliation Statement by providing to Purchaser any necessary information in Seller’s possession or reasonable control. Seller shall have 15 Business Days in which to object to or comment upon the Reconciliation Statement, and the costs and expenses payable by Ownerparties shall cooperate in good faith to resolve such objections or comments in order to agree upon a final Reconciliation Statement. If Seller does not comment or object to the Reconciliation Statement within the 15-day period, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), it shall be paid by Contributor and deemed to have approved the Reconciliation Statement. If Seller collected Pass Through Charges in excess of a tenant’s actual share thereof, then Seller shall not be charged topay Purchaser such excess within 10 days after Seller’s approval of the Reconciliation Statement. If Seller collected Pass Through Charges that are less than a tenant’s actual share thereof, or then Purchaser shall pay Seller the responsibility amount thereof within 10 days after Seller’s approval of SCOLPthe Reconciliation Statement.
(i) 6.3.11 The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date provisions of this Agreement.
Section 6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Franklin Street Properties Corp /Ma/)
Adjustments and Prorations. 6.1 The following adjustments and prorations 5.1 Seller shall be made at entitled to all income produced from the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion operation of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date Property which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after and shall be responsible for all expenses allocable to that period; and Buyer shall be entitled to all income and responsible for all expenses allocable to the period beginning at 12:01 A.M. on the Closing Date. At Closing, they all items of income and expense with respect to the Property shall remain be prorated in accordance with the property foregoing provisions and the rules for the specific items set forth hereafter:
5.1.1 Seller shall arrange for a billing under all those Service Contracts for which fees are based on usage and with utility companies for a billing for utilities, to include all utilities or service used up to the Closing Date, and Seller shall pay the resultant bills. In the event any of the Owner Service Contracts set forth in Exhibit 3 cover periods beyond the Closing Date the same shall be prorated on a per diem basis.
5.1.2 Real estate taxes, general, special and/or SCOLPbetterment assessments and personal property taxes shall be prorated based upon the period (i.e., calendar or other tax fiscal year) to which same are attributable, regardless of whether or not any such taxes are then due and payable or are a lien. Seller shall pay at or prior to Closing (or Buyer shall receive credit for) those unpaid taxes which are attributable to periods prior to the Closing Date. In the event that as of the Closing Date the actual tax bills for the tax year or years in question are not available and the amount of taxes to be prorated as aforesaid cannot be ascertained, then rates, millages and assessed valuation of the previous year, with known changes, shall be used; and after the Closing occurs and when the actual amount of taxes for the year or years in question shall be determinable, such taxes will be re-prorated between the parties to reflect the actual amount of such taxes.
5.1.3 Rentals and other payments (other than “percentage rent” and common area maintenance charges which are dealt with in Section 5.1.4 and Section 5.1.6) which are payable pursuant to Space Leases shall be prorated on a per diem basis as and when collected (subject to the provisions of Section 5.3). Buyer shall not be obligated to make any payment or give any credit to Seller on account of or by reason of any rental or other payments which are unpaid as of the Closing Date, but shall be required to turn over Seller’s share of the same within ten (10) days if, as and when received by Buyer after the Closing; likewise, Seller agrees to turn over Buyer’s share of any payments received from tenants applicable to any period from and after the date of Closing within ten (10) days of Seller’s receipt of same; this provision shall survive Closing.
5.1.4 Percentage rent; if any, payable under each Space Lease shall be prorated with respect to the lease year thereunder in which Closing occurs on a per diem basis as and when collected. Any percentage rent collected by Buyer including any percentage rent which is delinquent and pertaining to (i) an entire lease year or accounting period of a tenant under a Space Lease which ends on a date prior to the Closing Date, or (ii) that portion of a lease year or accounting period of such tenant covering a period prior to the Closing Date where such lease year or accounting period begins prior to the Closing Date and ends thereafter shall in both cases be paid to Seller within ten (10) days of receipt by Buyer; and if any tenant’s Space Lease provides for offsets or distributed deductions against percentage rent, then such offsets or deductions shall be prorated in the same manner as the percentage rent itself is prorated. This provision shall survive Closing.
5.1.5 Gas, water, electricity, heat, fuel, sewer and other utilities charges to which Section 5.1.1 cannot be applied, and the governmental licenses, permits and inspection fees and operating expenses relating to the ContributorShopping Center (expressly excluding therefrom, however, such expenses relating to the initial construction of the Shopping Center), shall be prorated on a per diem basis.
5.1.6 Common area maintenance expenses and charges shall be prorated. The Owner Seller shall be responsible for all common area expenses and charges incurred prior to the Closing Date, and Buyer shall be responsible for the same accruing on and subsequent to the Closing Date. All common area expense payments made by each tenant and such charges paid under its Space Lease for the entire lease year during which the Closing occurs, including end-of-year adjustments, if any, shall be prorated between Seller and Buyer in the following manner: Not later than three (3) days prior to Closing, Seller shall deliver to Buyer, with regard to each Shopping Center tenant required to pay common area charges (“CAM Charges”) under its lease, a detailed computation showing all CAM Charge expenses incurred by Seller for the period from the beginning of each such tenant’s then current billing period for CAM Charges (e.g., calendar year, lease year, etc.) through the Closing Date, any CAM estimated payments or charges collected by Seller relating to such tenant (hereinafter “CAM Estimates”), and a ▇▇▇▇ for the tenant’s pro rata share of CAM Charges (i.e., for CAM charges through the Closing Date net of any such CAM Estimates held by Seller), together with all invoices and other evidence documenting such CAM Charges in detail required by such tenant’s lease. Buyer shall send any such bills to tenants promptly following Closing, in which event such tenant shall pay any amount shown due directly to Seller, and except as otherwise stated in Section 5.3.3 below Buyer shall have no responsibility to collect same. However, if any tenant rightfully refuses to pay such ▇▇▇▇ for CAM Charges due through the Closing Date, then Buyer shall resubmit such ▇▇▇▇ to any such tenant at the same time as Buyer next submits Buyer’s own ▇▇▇▇ to any such tenant; and any payment thereafter made by any such tenant on account of CAM Charges shall belong to and be forwarded within ten (10) days of its receipt to Seller until Seller’s ▇▇▇▇ is paid in full. Any CAM Estimates for any tenant shall be retained by Seller up to the amount of the pre-Closing CAM Charges payable by such tenant as evidenced by such bills and computations delivered by Seller at Closing, and Buyer shall receive a credit for any excess CAM Estimates collected by Seller.
5.1.7 All prepaid rentals, other prepaid payments(other than monthly real estate tax estimates or installments), security deposits paid pursuant to Space Leases, electric, gas, sewer and water deposits deposited with Seller by tenants, (including any accrued interest required under any Space Lease on all of the foregoing, unless Seller is entitled to retain the benefit thereof) under any Space Leases, license agreements or concession agreements relating to the Property, shall all belong to Buyer and all shall be assigned and delivered to Buyer at Closing, whereupon Seller shall be released from all liability with respect thereto. At Seller’s option, Buyer shall receive a cash credit in the amount of all Security Deposits to be delivered to Buyer at Closing, and Seller may retain same.
5.1.8 Buyer shall not distribute be responsible for any charges, salaries, vacation pay or assign fringe benefits of employees of Seller prior to or following the Closing and none of the foregoing shall be prorated.
5.2 All prorations and payments to be made under the foregoing provisions shall be made on the basis of a written statement or statements delivered to Buyer by Seller and approved by Buyer. In the event any prorations, apportionments or computation shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same, provided that it makes written demand on the one from who it is entitled to such adjustment within two (2) years after the erroneous payment or computation was made; this provision shall survive Closing.
5.3 All accounts receivable flowing from the Property shall be treated as follows:
5.3.1 Buyer and Seller agree to treat all base or minimum rental payments received from a tenant as applicable to base or minimum rent which was owed by that tenant, if any, first for the month prior to the Contributor month in which Closing occurs and next for the month in which Closing occurs until the base or minimum rental amount due to Seller for such periods have been collected. In the event that there remains any unpaid base or minimum rent for a period prior to such periods, all payments of base or minimum rent received from such tenant shall be applied to sums owed Buyer before any part thereof shall be treated as belonging to Seller. In the event that there remains any unpaid tenant receivable other than base or minimum rent (including without limitation any tax, CAM, insurance or percentage rent payments) for any period prior to Closing, all payments received from any tenant in arrears (whether base or minimum rent or any other amount) shall be applied first to any such sums owed Buyer from such tenant before any part thereof shall be treated as belonging to Seller.
5.3.2 In the event that any tenant of Seller or Buyer shall hereafter apply or shall have heretofore applied for relief under the provisions of any bankruptcy or similar laws for the protection of debtors, the provisions of Section 5.3.1 shall not apply, and the Contributor parties shall not have the right to seek collectioncollection of their respective accounts, through litigation or otherwisetheir entitlements being determined by the Closing and the other provisions of this Agreement. Neither party shall have the right to enter into any transactions that purport to compromise claims belonging to the other, of unpaid Rents. Any eviction actions which are on-going as of without the other party’s prior written consent.
5.3.3 “If at the Closing Date any tenants owe Seller any money (i.e. reimbursements to Seller for payment of liens or violations on the Property that were created by tenant(s) but that Seller is required hereunder to satisfy in order to effectuate the sale of the Property or rent arrears (which shall include CAM and tax reimbursements)), Seller shall have the expense right, subsequent to the Closing, to collect such sums directly from the tenants, including bringing lawsuits against the tenants (at Seller’s sole expense) for such collection (except that Seller is prohibited from bringing a lawsuit against any tenant(s) to collect rent in arrears for a period of thirty (30) days after such dispute or arrears has arisen (the “Buyer Collection Period”); instead Buyer agrees to use commercially reasonable efforts to collect such arrears on Seller’s behalf, if Buyer is unsuccessful in collecting the tenant arrears by the expiration of the Buyer Collection Period, then Seller shall have the right to collect such sums directly form the tenants including bringing lawsuits against the tenants (at Sellers sole expense) for such collection, however, Seller agrees that any such legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and action or collection shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property include any disturbance of the Owner and shall not be paid possession, use or occupancy of the tenants or any right to evict the tenants, whether pursuant to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions lease provisions or otherwise, and all amounts due Buyer shall at Seller’s expense join in any lawsuit and/or also participate or cooperate with Seller in its collection attempts. Buyer will (at Seller’s expense) join in such a lawsuit or action only if the same does not include or require disturbance of the possession of any tenants.”
5.3.4 In the event Seller has granted rent concessions to tenants under space lease(s) that would extend beyond the Closing Date, Buyer shall receive credit for same.
5.4 If Buyer accepts the payment environmental condition of employment taxes with respect theretothe Property during the Due Diligence Period, shall be paid by Owner on or then, prior to the Contribution Dateexpiration of the Due Diligence Period, or, if not paid, an amount equal Seller and Buyer shall reasonably agree upon a credit to such entire unpaid liability shall be paid in cash given to Buyer at Closing for the purpose of post-closing environmental monitoring.
5.5 The provisions of this Article 5 will survive Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Agreement of Sale (Inland American Real Estate Trust, Inc.)
Adjustments and Prorations. 6.1 The At Closing, the following adjustments and prorations items shall be made at the Closing adjusted or prorated between SCOLP, Owner Seller and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.Purchaser:
(a) Real estate Ad valorem taxes and personal property taxes which are a lien upon or levied against any portion of for the Project prior to Property for the Contribution Date (other than then current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments calendar year shall be prorated at the Closing effective in cash as of the Closing Date based on a current appraised values. Seller’s pro rata portion of such taxes shall be based upon taxes actually assessed for the then current calendar year basisor, understanding that real estate if for any reason such taxes in for the State of Florida are payable in arrears. Such Property have not been actually assessed, such proration shall be made based upon current appraised values and adjusted by cash settlement when exact amounts are available. If the Property is assessed and taxed as a part of a larger parcel, then, for purposes of computing tax prorations, a proportionate part of the ad valorem taxes attributable to such larger parcel shall be allocated to the Property on the basis of the amount ratio between the number of real estate gross acres of the Property and personal property the total number of gross acres comprising such larger parcel, taking into account the value and location of any improvements located on the larger parcel. All special taxes for the current year if and or assessments approved or assessed prior to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Closing Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor Seller. If Seller or SCOLPSeller’s predecessors in title have claimed any partial or total exemption from taxation of the Property based on agricultural or open space use or any other use, as and if a loss of such partial or total exemption would result in the case may beimposition of tax (“Rollback Taxes”), Purchaser shall satisfy those taxes after the Closing, prior to delinquency. Therefore, it is specifically understood and agreed that if this sale or Buyer’s use of the Property after Closing results in the assessment of additional taxes for periods prior to Closing, such additional taxes shall be the obligation of Buyer, and such obligation shall survive Closing.
(b) The amount Seller agrees to (i) pay the premium for basic owners Title Policy; (ii) pay for the. preparation of all unpaid water and other utility bills the Deed; (iii) any costs for recording fees for the Project which are not directly billed to Deed and any releases of recorded liens; and (iv) Seller’s attorney fees; (v) the tenants expenses incurred in obtaining tax certificates; (vi) one-half (1/2) of the Project, cost of any Title Company escrow fees; and all (vii) such other operating incidental costs and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be fees customarily paid by Owner or Contributor on or prior to sellers in comparable land transactions in the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of County in which the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution DateProperty is located.
(c) Charges under Project Contracts Purchaser shall pay the following costs and expenses: (i) Purchaser’s attorney’s fees; (ii) one-half (1/2) of the cost of any Title Company escrow fees; (iii) the premium charged by the Title Company to amend the “survey exception” in the Title Policy; (iv) the charge, if any, by the Title Company to exclude from the Title Policy the exception as defined belowto “rights of parties in possession” if Purchaser elects said exclusion; and (v) attributable to the period prior to the Contribution Date shall be such other incidental costs required and fees customarily paid by Owner or Contributor prior to Purchasers in comparable land transactions in the Contribution Date, or, if not paid, County in which the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution DateProperty is located.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree The agreements as to prorations and adjustments in this Section shall survive the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such RentsClosing. In the event that, subsequent to the parties are unable to agreeClosing, the Owner shall apply any payments received during the period between adjustments made at the Closing Date and pursuant to this Section are determined by the date which is ninety days after the Closing Date, first Title Company to the cost of collecting such paymentsbe erroneous, then either party hereto who is entitled to additional monies shall invoice the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not other party for such additional amounts as may be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLPowing, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any within ten days from receipt of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payableinvoice.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments matters and prorations items shall be apportioned between the parties based on actual daily amounts or, where appropriate, credited in total to a particular party, as provided below, provided all apportionments and credits made at by or in favor of Purchaser or Seller as set forth below (excluding (a)) shall only be made, to the Closing between SCOLPextent of the Purchaser Prorata Share of all such amounts in the case of Purchaser, Owner and Contributor. The adjustments and prorations to the extent of the Seller Prorata Share of all such amounts in the case of Seller, i.e. if Purchaser would otherwise be entitled to a net $100 credit as provided below, the actual credit will be made by $49, and if Seller would otherwise be entitled to a cash payment and shall not net $100 credit as provided below, the actual credit will be an adjustment to the Units to be issued at Closing.$51:
(a) Real estate The Purchaser Prorata Share of the outstanding principal balance of the Closing Financing as of the Cut-off Time shall be credited to Purchaser.
(b) All ad valorem taxes, special or general assessments, assessments under any Scheduled Encumbrances (collectively, “Property Taxes”), personal property taxes, water and sewer rents, rates and charges, vault charges, canopy permit fees, and other permit fees shall be prorated as of the Cut-off Time provided, however, (i) if any taxes or assessments relating to the period prior to the Closing are paid in installments which are then due and payable, then Owner shall pay on or before Closing Date any remaining installments thereof and (ii) real property tax prorations shall be based on when such taxes and personal property taxes which are assessments accrue and become a lien on the Property, notwithstanding when such taxes become due and payable.
(c) Fees paid or payable in connection with transfer of Permits (other than Excluded Permits) shall be prorated as of the Cut-off Time.
(d) All payments due under the Management Agreement shall be prorated as of the Cut-off Time. Without limitation of the foregoing, any incentive fees due and payable under the Management Agreement for the calendar year in which Closing occurs shall be prorated between Purchaser and Seller in the same proportion as gross revenues accrue under the Management Agreement prior to and after the Cut-off Time. As an example only, if for the calendar year in which Closing occurs seventy-five (75%) percent of the gross revenues have accrued under the Management Agreement as of the Cut-off Time, Seller shall be responsible for seventy-five (75%) percent of the incentive fees and Purchaser shall be responsible for twenty-five (25%) percent of the incentive fees for such calendar year.
(e) Purchaser shall receive a credit for (i) advance payments or deposits, if any, made pursuant to any Bookings, (ii) all commissions due to credit and referral organizations attributable to stays (or portions thereof) prior to the Cut-off Time that are outstanding, and (iii) a percentage of all outstanding gift certificates issued for any use of the Hotel facilities including, without limitation, rooms and food and beverage, and any commitments made for the free use of any hotel facilities, which percentage shall be based upon the amount, age and historic redemption rate of gift certificates and commitments for free use at the Hotel. Seller shall receive a credit for coin machine, telephone, washroom, and checkroom income arising before the Cut-off Time.
(f) Gas, electricity and other utility charges shall be apportioned at Closing on the basis of the most recent meter reading occurring prior to Closing (but subject to later readjustment as set forth below) with Seller receiving a credit for each deposit and reserve, if any, made by or levied against on behalf of Seller for utilities so long as such deposit or reserve remains on account for the benefit of Owner or New Operating Lessee.
(g) Operational and/or occupancy taxes shall be prorated as of the Cut-off Time.
(h) Telephone and telex contracts and contracts for the supply of heat, steam, electric power, gas, lighting and any other utility service shall be prorated as of the Cut-off Time, with Seller receiving a credit for each deposit and reserve, if any, made by or on behalf of Owner or that will benefit New Operating Lessee for utilities or under contracts, including reserves maintained under the Management Agreement, provided such deposit or reserve remains on account for the benefit of Owner or New Operating Lessee. Where possible, cut-off readings will be secured for all utilities on the Closing Date.
(i) Any amounts prepaid, payable or accrued under any Hotel Contracts and Space Leases, if any, shall be prorated as of the Cut-Off Time. Percentage rent (i.e., that portion of the Project prior rent payable to landlord by tenants under the Contribution Date (other than current taxesSpace Leases which is a percentage of the amount of sales or of the dollar amount of sales), and all special assessments levied on any portion of the Project prior to the Contribution Dateif any, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments payable under each Space Lease shall be prorated at with respect to the year thereunder in which Closing effective occurs on a per diem basis. If the actual amounts to be prorated are not known as of Closing, the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration prorations shall be made on the basis of the amount of real estate best evidence then available and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, reconciled as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified provided in Section 19.1 to be paid by Contributor7.02(b), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any Proratable Compensation of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP Employees shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner prorated as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this AgreementCut-off Time.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Membership Interests (Strategic Hotels & Resorts, Inc)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at All revenues arising from the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to Station up until midnight on the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project day prior to the Contribution Date (other than current taxes)TBA Date, and all special assessments levied expenses arising from the Station up until midnight on any portion of the Project day prior to the Contribution TBA Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current including business and license fees (including any retroactive adjustments thereof), utility charges, real estate and personal property taxes and assessments shall be prorated at levied against the Closing effective Assets, accrued employee benefits such as vacation time and sick time, property and equipment rentals, applicable copyright or other fees, sales and service charges, taxes (except for taxes arising from the transfer of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”Assets hereunder), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project)similar prepaid and deferred items, shall be prorated on an accrual basis. SCOLP between Buyer and Seller in accordance with the principle that Seller shall either pay the Contributor or provide the Contributor with a credit for (x) receive all unpaid Rents from tenants who are not delinquent more than thirty days as revenues, and all refunds to Seller and deposits of the Closing Date (for those residents which remain in occupancy at the Project); Seller held by third parties, and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit responsible for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoingall expenses, SCOLP costs and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents liabilities allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property conduct of the Owner and/or SCOLP, and shall not be paid to business or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as operations of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project Station for the period prior to the Contribution TBA Date, whether and Buyer shall receive all revenues and shall be responsible for all expenses, costs and obligations allocable to the conduct of the business or operations of the Station on the TBA Date and for the period thereafter. Buyer shall receive credit to the extent of the value (as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, calculated in Seller's financial statements consistent with past practice) of any and all amounts due advertising time to be run following the TBA Date for which trade or barter consideration has been received by the payment of employment taxes with respect thereto, shall be paid by Owner on or Seller prior to the Contribution TBA Date. Notwithstanding the foregoing, there shall be no adjustment for, and Seller shall remain solely liable with respect to, any Contracts not included in the Assumed Contracts, or any other obligation or liability not being assumed by Buyer in accordance with Section 2.5.
A. Any adjustments or prorations will, insofar as feasible, be determined and paid on the TBA Date, orwith final settlement and payment being made in accordance with the procedures set forth in Section 2.4B.
B. Within sixty (60) days after the TBA Date, if not paidBuyer shall deliver to Seller a certificate (the "Adjustment Certificate"), an amount equal signed by a senior officer of Buyer after due inquiry by such officer but without any personal liability to such entire unpaid liability officer, providing a compilation of the adjustments and prorations to be made pursuant to this Section 2.4, including any adjustments and prorations made at the TBA Date, together with a copy of any working papers relating to such Adjustment Certificate and such other supporting evidence as Seller may reasonably request. If Seller shall conclude that the Adjustment Certificate does not accurately reflect the adjustments and prorations to be paid in cash at Closing.
made pursuant to this Section 2.4, Seller shall, within thirty (h30) All costs and expenses incurred by Ownerdays after its receipt of the Adjustment Certificate, the Holding Company or Contributor prior provide to the Contribution Date in connection with the transactions contemplated herein and the performance Buyer its written statement of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loanany discrepancies believed to exist. Joseph L. Winn on behalf of Buyer, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are John M. Brennon on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the behalf o▇ ▇▇▇▇▇▇, ▇▇ Entities hereunder. The Owner shall not distribute any other righttheir respective designee▇, claim, cause of action or asset after ▇▇▇▇▇ ▇▇▇▇▇pt jointly to resolve the Effective Date of this Agreement.
6.3 If discrepancies within ninety fifteen (9015) days after receipt of Seller's discrepancy statement, which resolution, if achieved, shall be binding upon all parties to this Agreement and not subject to dispute or review. If such representatives cannot resolve the Closing either SCOLP or Contributor discovers discrepancy to their mutual satisfaction within such fifteen (15) day period, Buyer and Seller shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review the Adjustment Certificate together with Seller's discrepancy statement and any inaccuracies or errors in the pro rations or other relevant documents. The cost of retaining such independent public accounting firm shall be borne equally by Buyer and Seller. Such firm shall report its conclusions as to adjustments done at Closing pursuant to Sections 6.1 and/or 6.2this Section 2.4, such party which report shall notify the other party of such inaccuracy be conclusive on all parties to this Agreement and not subject to dispute or error by written notice including reasonable detail of the review. If, after adjustment as appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue the amount of the aforesaid adjustments paid or credited at the TBA Date, Buyer is determined to owe an amount to Seller, Buyer shall pay such amount to Seller, and the prorations and adjustments done at Closing pursuant if Seller is determined to Section 6.1. After the parties resolve any owe an amount to Buyer, Seller shall pay such issues oramount thereof to Buyer, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to each case within ten (10) days of such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)determination.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Subject to the terms of this Agreement, all revenues and all expenses arising from the Business, including tower rental, business and license fees, utility charges and all other fees or charges arising under the Real estate taxes Property Leases, real and personal property taxes which are a lien upon or Taxes and assessments levied against any portion the Assets, property and Equipment rentals, applicable copyright or other fees (including program license payments), sales and service charges, Taxes (except for Taxes arising from the transfer of the Project prior to the Contribution Date (other than current taxesAssets hereunder), annual regulatory fees, amounts owing in respect of unlicensed software, music license fees and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate similar prepaid and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project)deferred items, shall be prorated on an accrual basis. SCOLP shall either pay between Seller and Buyer in accordance with GAAP and subject to the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or general principle that Seller shall receive a credit the benefit of all revenues, and be responsible for the pro rata share of the collected Rents received for the Closing Month. In addition all costs, expenses and Liabilities, allocable to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, Station for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLPDate, and Buyer shall not receive the benefit of all revenues, and be paid to or distributed responsible for all costs, expenses and Liabilities, allocable to the Contributor. The Owner Station on or after the Closing Date, including that Seller shall not distribute or assign receive a credit for all prepaid expenses (including prepaid tower rent) incurred by Seller with respect to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred Station on and after the Closing Date Date; subject, however, to the following:
(1) There shall be no proration for program barter or for goods or services to be received by the responsibility Station under its trade or barter agreements as of Owner the Closing Date.
(2) Seller shall be entitled to all revenue and bear all expenses and Liabilities related to the Excluded Assets and the Non-Assumed Liabilities both prior to and after the Closing Date, except as provided in Section 5.2(c) hereof.
(b) Seller shall prepare and submit to Buyer, not later than five (5) Business Days prior to the Closing Date, a good faith written estimate of the adjustments and prorations set forth in subsection (a) above and in Schedule 5.1(i) and any reimbursement under Section 5.2(c) that remains unpaid as of Closing (the “Adjustments”) in accordance with this Section 2.3, along with Seller’s estimate of the Purchase Price resulting from the Adjustments (“Seller’s Estimate”). After delivery of Seller’s Estimate, including all supporting documentation of any proposed Adjustments, Buyer and Seller shall in good faith attempt to resolve prior to Closing any disputes between them with respect to the determination of the Closing Cash Payment. If as of Closing any items shall be in dispute between them with respect to the Closing Cash Payment, Seller’s Estimate, as adjusted to reflect any changes to the Adjustments agreed to by the Parties, shall be used as the amount of the Closing Cash Payment payable by Buyer on the Closing Date, with such disputed items to be settled between the Parties following Closing pursuant to subsections (c) and (d) below, and the size of the Indemnity Fund shall be increased by the amount in dispute, which increase shall be disbursed to Seller or returned to Buyer, as appropriate, as part of the settlement between the Parties upon the completion of the adjustment process pursuant to subsection (c) and if applicable, subsection (d) below.
(c) Buyer shall prepare and submit to Seller, not later than thirty (30) days following the Closing Date, Buyer’s written good faith determination of the Adjustments, including any changes to the preliminary Adjustments used to determine the Closing Cash Payment and all supporting documentation of any additions or modifications to the preliminary Adjustments, along with a calculation of the Purchase Price resulting from the Adjustments as determined by Buyer (“Buyer’s Calculation”). After delivery of Buyer’s determination of the Adjustments and Buyer’s Calculation to Seller, Seller may furnish Buyer, within fifteen (15) Business Days following delivery of Buyer’s Calculation, with written notification setting forth in reasonable detail any disputes Seller has with Buyer’s determination of the Adjustments and Buyer’s Calculation. In the event that Seller does not provide such a written notification within such thirty (30) day period, Seller shall be deemed to have accepted the Adjustments and Buyer’s Calculation, which shall be final, binding and conclusive for all purposes hereunder. In the event any such written notification is timely provided, then Buyer and Seller shall, for a period of ten (10) Business Days (or such longer period as they may mutually agree), in good faith attempt to resolve any disputes between them with respect to the determination of the Purchase Price, with each Party claiming an adjustment to its credit providing the other with any documentation reasonably requested by the other Party to determine the appropriateness of such claimed Adjustment. In no event shall Buyer or Seller be permitted to dispute any item or amount that was agreed to prior to Closing in the determination of the Closing Cash Payment.
(d) If, following such ten (10) Business Day period, the Parties cannot agree on the amount of the final Adjustments, the determination shall be made by a national or regional accounting firm jointly designated by the Parties (the “Auditor”). The Auditor shall make the determination based on GAAP in effect on the Closing Date. Either Party may invoke the use of the Auditor by notifying the other Party in writing. In the event that either Party invokes the use of the Auditor, there shall be a thirty (30) day period (the “Discovery Period”) when the Parties may request of and shall provide to each other in writing or computer format where appropriate any documentation or records in the possession of the other Party that are related to a claim or defense to be made to the Auditor. Fifteen (15) Business Days after the expiration of the Discovery Period, the Parties shall have the opportunity to present their claims and supporting documentation to the Auditor. The Parties shall use their commercially reasonable efforts to cause the Auditor to render a decision within fifteen (15) Business Days after each Party shall have presented (or have foregone the opportunity to present) its claims and supporting documentation to the Auditor. The decision of the Auditor shall be final and binding on the Parties and shall not be charged subject to Contributorany judicial challenge by either Party. Sums received on account of such litigation shall also remain Within five (5) Business Days after the property of Auditor provides the Owner and shall not be paid determination to the Contributor or otherwise subject Parties, payment in accordance with that determination shall be made by the appropriate Party by wire transfer of immediately available funds in U.S. dollars, to proration.
(f) An amount equal an account designated by the Party entitled to all receive such payment. The expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, Auditor shall be paid by Owner the Party which, based on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, Auditor’s resolution of the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributordisputed item(s), shall be paid by Contributor and shall is not be charged to, or the responsibility of SCOLPprevailing Party.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments matters and prorations items pertaining to the Property shall be made apportioned between the parties hereto or, where applicable, credited in total to a particular party, as of 12:01 a.m. Cleveland, Ohio time on the Closing Date (the “Cutoff Time”). Net credits in favor of Buyer shall be deducted from the balance of the Purchase Price at the Closing between SCOLPClosing, Owner and Contributor. The adjustments and prorations will net credits in favor of Seller shall be made by a cash payment and shall not be an adjustment added to the Units balance of the Purchase Price at the Closing. Unless otherwise indicated below, Buyer shall receive a credit for any of the following items to be issued at Closing.the extent the same are accrued but unpaid as of the Cutoff Time (whether or not due, owing or delinquent as of the Cutoff Time), and Seller shall receive a credit to the extent any of the following items shall have been paid prior to the Closing Date to the extent the payment thereof relates to any period of time after the Cutoff Time:
(a) Real estate taxes Guest ledger receivables (e.g., all amounts, including, without limitation, room charges, food and beverage charges, telephone, in-room movies and any and all incidental charges accrued to the accounts of guests occupying rooms in the Hotel as of the Cutoff Time) shall be prorated as of the Cutoff Time between Buyer and Seller. Seller shall receive a credit for all guest ledger receivables for all room nights up to and including the room night during which the Cutoff Time occurs, and Buyer shall be entitled to the amounts of guest ledger receivables for the room nights after the Cutoff Time. All restaurant and bar facilities will be closed as of the Cutoff Time, and Seller shall receive the income from the same until the Cutoff Time.
(b) All nondelinquent ad valorem taxes, special or general assessments, real and personal property taxes which are a lien upon or levied against taxes, hotel occupancy tax, water and sewer rents, rates and charges, vault charges, and any portion municipal permit fees shall be prorated as of the Project prior to the Contribution Date (other than current taxes), Cutoff Time between Buyer and all special assessments levied on any portion of the Project prior to the Contribution Date, Seller by Escrow Agent. Seller shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property charged with such taxes and assessments for all periods up to, but not including, the date on which the Cutoff Time occurs, and Buyer shall be entitled to a credit for said taxes and assessments. Notwithstanding the foregoing, real property taxes shall be pro rated based upon the date of assessment and Seller shall be responsible for all real estate taxes payable in 2005 (with respect to the 2004 tax year) and its pro rata portion payable in 2006 (with respect to the 2005 tax year). If the amount of any such item is not ascertainable on the Closing Date, the credit therefor shall be based on the most recent available b▇▇▇ and adjusted as necessary post-closing as contemplated in Section 9.2.
(c) Telephone and telex contracts and contracts for the supply of heat, steam, electric power, gas, lighting and any other utility service shall be prorated at the Closing effective as of the Closing Date Cutoff Time between Buyer and Seller by the Escrow Agent. Seller shall receive a credit for all deposits, if any, made by Seller as security under any such public service contracts if the same are transferable and provided such deposits remain on a calendar year basisdeposit for the benefit of Buyer. Where possible, understanding that real estate taxes in cutoff readings will be secured for all utilities as of the State Cutoff Time. To the extent they are not available, the cost of Florida are payable in arrears. Such proration such utilities shall be made apportioned between the parties on the basis of the amount of real estate latest actual (not estimated) b▇▇▇ for such service and personal property taxes for adjusted as necessary post-closing as contemplated in Section 9.2.
(d) Any amounts prepaid or payable under the current year if and to the extent that the taxing authorities have issued statements thereforGround Lease, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date Contracts, Personal Property Leases or Tenant Leases shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the ProjectCutoff Time between Buyer and Seller by the Escrow Agent. All amounts known to be due under the Ground Lease, the Contracts and all other operating and other expenses incurred Personal Property Leases with respect reference to the Project and Owner, and relating to the period periods prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Closing Date shall be paid by Owner Seller or Contributor prior credited to Buyer as a reduction of the Contribution Date, or, if not paid, the amount Purchase Price. Rents (including percentage rents) and other payments due under Tenant Leases shall be reserved in cash within adjusted at Closing based on current information. Any additional amounts not known and any final calculation of percentage rent not available at the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall Closing will be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to post-closing adjustments contemplated in Section 6.2 below9.2.
(e) Prepaid revenue received by Fees paid for transferable Permits in the Owner attributable to the current period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days shall be prorated as of the Closing Date Cutoff Time between Buyer and Seller by the Escrow Agent.
(for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (xf) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or Buyer shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributoradvance payments, if any, under bookings to the extent the bookings relate to a period after the Cutoff Time and have been incurred in accordance with the terms hereof.
(g) Vending machine monies will be removed by Seller as of the Cutoff Time for Rents delinquent more than thirty days as the benefit of Seller.
(h) All cash on hand in house banks (including the general manager’s p▇▇▇▇ cash fund) on the morning of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain become the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor Buyer and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date amount thereof shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor Seller at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP Buyer shall be entitled to a credit or payment at Closing in for all security and other deposits held by Seller as of the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens Cutoff Time with respect to Tenant Leases, Personal Property Leases and Contracts, to the Project shall be fully paid extent Buyer assumes such leases and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payablecontracts.
6.2 On or prior (j) Seller shall pay the fees applicable to recording the deed and any other documents to be recorded hereunder. Buyer shall pay all transfer taxes (including personal property taxes), and one-half of the escrow fees incidental to the Contribution Date, Contributor (directly or indirectly through the Holding Company) Closing. Buyer shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations fees and adjustments shall be in accordance costs associated with the terms of this Agreement, title insurance and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, preparing or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)updating a survey.
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments Adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, Premises shall be paid by Owner or Contributor on or prior to computed and determined between the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner parties as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor 12:01 a.m. on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (as follows:
A. All real estate taxes and assessments, levied or assessed on or against the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), Premises shall be prorated on an accrual basisbasis as of the Closing Date, it being the intent of the parties that neither party shall receive a windfall. SCOLP At the Closing, Buyer shall either pay the Contributor or provide the Contributor with receive a credit against the Purchase Price equal to all accrued and unpaid taxes and assessments attributable to a period through the Closing Date (including, without limitation, all taxes and assessments attributable to the year prior to the Closing but not payable until after the Closing and all taxes and assessments attributable to the year in which the Closing occurs but not payable until the following year), less deposits paid by tenants (to the extent transferred to Buyer). The credit for (x) all unpaid Rents from tenants who are accrued taxes and assessments for which bills have not delinquent more than thirty days been issued as of the Closing Date (for those residents which remain in occupancy at shall be based on the Project); then most recent taxes and (y) the assessments. Buyer agrees to reimburse Seller its pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due taxes recovered from the tenants with respect under the Leases relating to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after ClosingDate, they shall remain the property as and when Buyer actually collects such taxes from tenants, and Buyer agrees that it will use commercially reasonable efforts to collect such amounts. All taxes imposed due to a change of use of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and Property after the Closing Date shall be paid by the responsibility Buyer. If any taxes which have been apportioned shall subsequently be reduced by abatement, the amount of Owner such abatement, less the cost of obtaining the same and after deduction of sums payable to tenants under Leases or expired or terminated Leases, shall be equitably apportioned between the parties hereto.
B. All rent, fees, charges, reimbursements, and other income and charges due under the Leases, and any and all other income, profits, or revenue arising out of the Premises ("Income") and received by the Seller on or before Closing shall be prorated as of the Closing Date with Seller receiving all income accruing through and including the day of Closing. The parties agree to equitably and in good faith prorate and apportion all Income, including without limitation percentage rent and tax reimbursements that accrue prior to Closing but are not received by Seller as of the Closing Date with Buyer remitting Seller's share to Seller within five (5) business days of receipt. Provided, however, rent and other charges that are past due as of Closing shall not be charged prorated on the settlement statement and any such amounts collected by Buyer after Closing shall be first applied to Contributor. Sums received on account amounts owed to Buyer at the time of receipt, and any excess shall be remitted to Seller for payment of such litigation shall also remain the property of the Owner and past due amounts which accrued prior to closing. Buyer shall not be paid required to take any action to collect past due Income from tenants on Seller's behalf, but if such amounts remain past due for sixty (60) days or more, Seller shall be entitled to pursue legal action against such tenants at Seller's sole cost and on Seller's behalf (and not as an agent of Buyer); provided Seller shall not be entitled to pursue any remedy which results in tenant termination or tenant eviction. Seller shall protect, indemnify, defend and hold Buyer harmless for, from and against any and all damages, losses, or liabilities arising out of claims and counterclaims pursued by such tenants in connection with the Contributor or otherwise subject legal action by Seller. With respect to proration.
(f) An amount equal to all expenses percentage rent, if a portion of the Project sales on which were paid such percentage rent is based accrued prior to the Contribution Date Closing Date, then for each such tenant, the percentage rent paid by such tenant and for which Owner will benefit after the Contribution Date collected by Buyer shall be disbursed or credited to Contributor at the Closingprorated and adjusted when such percentage rent is received by Buyer.
(g) All compensationC. On the Closing Date, fringe benefits and other amounts due Seller will deliver to Buyer in cash, as a credit against the employees of Owner Purchase Price or the manager of the Project for the period prior as an adjustment to the Contribution Dateprorations provided for elsewhere in this Section 13, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paidappropriate, an amount equal to all security deposits made by tenants occupying the Premises which were paid to Seller by such entire unpaid liability tenants and which have not been applied by Seller pursuant to the Leases, together with interest owing thereon pursuant to the applicable Lease, if any, and together with a listing of the tenants as to which such deposits and interest being held.
D. All amounts payable, owing or incurred in connection with the Premises under the Contracts to be assumed by Buyer shall be paid in cash at Closingprorated as of the Closing Date.
(h) E. All costs and expenses incurred by Owner, the Holding Company or Contributor prior with respect to the Contribution Date in connection with Premises, to the transactions contemplated herein and extent Seller is required to pay such expenses pursuant to the performance of its obligations under this AgreementLeases, including, without limitation, attorney and other professional fees, (the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor"Expenses"), shall be equitably and in good faith prorated as of the Closing Date. Any Expenses which are prepaid as of the Closing Date shall be credited to Seller. Buyer shall be responsible to pay Expenses accruing subsequent to the Closing Date. Seller shall receive a credit at Closing to the extent Seller has incurred any expenses for insurance or for maintaining the common areas, if such expenses may be passes through to the tenants, but have not been reconciled; provided, however, that Seller must provide Buyer with reasonable documentation of such expenses, and management fees may be included only to the extent that they are out-of-pocket expenses paid by Contributor Seller to an unaffiliated third party. To the extent the Expenses can accurately be prorated on the Closing Date such Expenses shall be prorated at the Closing. To the extent such Expenses cannot accurately be prorated on the Closing Date (e.g., utility charges), such Expenses shall be prorated and adjusted by Buyer as of the Closing Date when the actual bills covering the period in which the closing Date occurs are received by Buyer. Seller shall not be charged to, or pay its share of such Expenses promptly upon receipt of a statement from Buyer. Buyer shall have the responsibility right to offset Seller's share of SCOLPsuch Expenses against any income due Seller.
(i) F. The ▇▇▇▇▇▇▇ Money shall be paid to Seller at Closing, and Buyer shall be entitled to a credit against the Purchase Price in the amount thereof.
G. Seller shall receive a credit at Closing in the amount of all escrows and reserves required under being held by Lender pursuant to the Mortgage Documents Loans. Interest on the Loans shall be prorted at Closing. Seller shall be responsible for all payments on the Loans being timely made prior to the Closing Date.
H. All other items which are on deposit on the Contribution Date shall be paid by SCOLP customarily prorated in transactions similar to the Contributor on transaction contemplated hereunder and which are not otherwise addressed in this Agreement, will be prorated as of the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) Closing Date. In the event any rental discountsprorations or computations made under this Section 13 are based on estimates or prove to be incorrect, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP then either party shall be entitled to a credit or payment an adjustment to correct the same, provided that it makes written demand on the party from whom it is entitled to such adjustment within six (6) months after the end of the calendar year in which the Closing occurs. For purposes of calculating the prorations provided for in this Agreement, Buyer shall be deemed to be the owner of the Premises on the Closing Date.
I. Buyer shall notify Seller as to which of the Contracts it desires to assume at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect which Contracts Buyer desires Seller to the Project shall be fully paid and satisfied or credited or paid to SCOLP cancel on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Closing Date by giving Seller written notice thereof no later than the earlier of (a) the final day of the Due Diligence Period or (b) if any Contract which Buyer desires Seller to terminate, by its terms, requires a thirty-day notice period prior to termination, at least thirty-three (33) days prior to the Closing Date. For any Contract which Buyer requests Seller to terminate which requires a longer period than thirty-day's notice to terminate, Contributor (directly or indirectly through the Holding Company) Seller will send a notice of termination within a reasonable time following receipt of Buyer's request; however, Buyer shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction responsible for any and all costs, expenses and prorations payable by termination fees or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect costs related to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP termination; and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments Buyer shall be in accordance with the terms of this Agreement, assigned and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)assume said Contract at Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Malan Realty Investors Inc)
Adjustments and Prorations. 6.1 The At Closing, the following adjustments and prorations items shall be made at the Closing adjusted or prorated between SCOLP, Owner Seller and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.Purchaser:
(a) Real estate Ad valorem taxes and personal property taxes which are a lien upon or levied against any portion of for the Project prior to Property for the Contribution Date (other than then current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments calendar year shall be prorated at the Closing effective in cash as of the Closing Date based on a current appraised values. Seller’s pro rata portion of such taxes shall be based upon taxes actually assessed for the then current calendar year basisor, understanding that real estate if for any reason such taxes in for the State of Florida are payable in arrears. Such Property have not been actually assessed, such proration shall be made on the basis of the amount of real estate and personal property taxes for the based upon current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated appraised values and adjusted between the parties on a calendar year basis and when exact amounts are available. All special taxes or assessments approved or assessed prior to the Closing Date shall be paid by Contributor Seller. If Seller or SCOLP, Seller’s predecessors in title have claimed any partial or total exemption from taxation of the Property based on agricultural or open space use or any other use that could result in tax on any of the Property for years prior to the Closing Date which become due as the case may beresult of any changes in land usage or ownership or otherwise (“Rollback Taxes”), Purchaser shall assume payment of the Rollback Taxes.
(b) The amount Seller agrees to pay: (i) one-half of all unpaid water and other utility bills customary escrow fees generally charged by the Title Company; (ii) the premium for the Project which are not directly billed standard Owner’s Title Policy; (iii) any costs for recording fees; (iv) up to $10,000 as reimbursement to Purchaser for the tenants cost of the Project, Survey; and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date(v) Seller’s own attorney fees.
(c) Charges under Project Contracts Purchaser agrees to pay: (as defined belowi) attributable one-half of all customary escrow fees generally charged by the Title Company; (ii) the premium of any endoresements to the period prior Owner’s Title Policy; (iii) all costs and expenses relating to financing the Contribution Date shall be paid by Owner or Contributor prior to Down Payment for the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after Property; and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date(iv) Purchaser’s own attorney’s fees.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree The agreements as to prorations and adjustments in this Section shall survive the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such RentsClosing. In the event that, subsequent to the parties are unable to agreeClosing, the Owner shall apply any payments received during the period between adjustments made at the Closing Date and pursuant to this Section are determined by the date which is ninety days after the Closing Date, first Title Company to the cost of collecting such paymentsbe erroneous, then either party hereto who is entitled to additional monies shall invoice the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not other party for such additional amounts as may be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLPowing, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any within ten days from receipt of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payableinvoice.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current All taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney real estate taxes and other professional feespersonal property taxes, the Acquisition Loancollected rents, charges for utilities, including water, sewer, and the fuel oil, and for utility services, maintenance services, maintenance and service contracts, all operating costs and expenses payable by Ownerexpenses, Holding Company or Contributor hereunder and all other rents, income, costs, and charges of every kind which in any manner relate to the ownership of the Property (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), but not including insurance premiums) shall be paid prorated to the Date of Closing, except that, if Seller does not receive the Purchase Price (by Contributor and receipt of wired funds or by receipt in hand of an official bank cashier's check) on the Date of Closing, all prorations shall not be charged tomade as of the following business day. If the amount of said taxes, assessments, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit rents is not known on the Contribution Date of Closing, they shall be paid by SCOLP to the Contributor apportioned on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any basis of the occupants at amounts for the Project for any reasonpreceding year, with a reapportionment as soon as the new amounts can be ascertained. If such taxes and the same have not been fully satisfied assessments shall thereafter be reduced by Closingabatement, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discountsabatement, incentives less the reasonable cost of obtaining the same, shall be apportioned between the parties, provided that neither party shall be obligated to institute or obligationsprosecute proceedings for an abatement unless otherwise agreed. In all eventsBuyer shall be responsible for the payment of any assessments or notice of assessments made after the date of Date of Closing hereof for any public improvement, all debts, obligations, charges, liabilities and liens with provided Buyer takes title hereunder. With respect to security deposits, if any, made by tenants at the Project Property and actually received in hand by Seller, Buyer shall receive credit therefore. Any deposits on utilities paid by Seller shall be fully paid returned to Seller. The foregoing provisions of this Section 8 shall not apply to any taxes, assessments, or other payments, which are directly payable by tenants under 45 their leases (if any) or reimbursable by such tenants to the owner of the Property, as landlord, under their leases (if any). On the Date of Closing, Seller shall deliver to Buyer all inventories of supplies on hand at the Property owned by Seller, if any, at no additional cost to Buyer. Seller shall be responsible for and satisfied or credited or paid discharge as and when due all obligations related to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On Property which had accrued at or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this AgreementClosing.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Purchase and Sale Agreement (President Casinos Inc)
Adjustments and Prorations. 6.1 The following adjustments and prorations 5.1 Seller shall be made at entitled to all income produced from the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion operation of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date Property which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after and shall be responsible for all expenses allocable to that period; and Buyer shall be entitled to all income and responsible for all expenses allocable to the period beginning at 12:01 A.M. on the Closing Date. At Closing, they all items of income and expense with respect to the Property shall remain be prorated in accordance with the property foregoing principles and the rules for the specific items set forth hereafter:
5.1.1 Seller shall arrange for a billing under all those Service Contracts for which fees are based on usage and with utility companies for a billing for utilities, to include all utilities or services used up to the Closing Date, and Seller shall pay the resultant bills. In the event any of the Owner Service Contracts set forth in Exhibit 3 cover periods beyond the Closing Date the same shall be prorated on a per diem basis; provided, however, there shall be no apportionment of any fees or charges under any management and/or SCOLPleasing agreement for the Property, any such agreement(s) to be terminated by Seller as of the Closing by Seller at Seller's sole cost and expense. Seller shall not provide to Buyer copies of the bills related to any amounts being prorated under the terms of the prior sentence.
5.1.2 Real estate taxes, general, special and/or betterment assessments and personal property taxes (collectively "Taxes") shall be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions prorated for those Taxes which are on-going due and payable during the calendar or other fiscal tax year in which the Closing Date occurs. In the event that as of the Closing Date the actual tax bills for the tax year or years in question are not available and the expense amount of any legal fees associated taxes to be prorated as aforesaid cannot be ascertained, then rates, millages and assessed valuation of the previous year, with such eviction actions incurred on known changes, shall be used; and after the Closing Date occurs and when the actual amount of taxes for the year or years in question shall be determinable, such taxes will be re-prorated between the responsibility parties to reflect the actual amount of Owner after Closing such taxes. Notwithstanding anything herein to the contrary, Seller shall be liable for payment of the full amount of any and all roll-back taxes, if any, owed with respect to the Property.
5.1.3 Rentals and other payments (other than "percentage rent" and common area maintenance charges which are dealt with in Section 5.1.4 and Section 5.1.6) which are payable pursuant to Space Leases shall be prorated on a per diem basis as and when collected (subject to the provisions of Section 5.3). Buyer shall not be charged obligated to Contributor. Sums received make any payment or give any credit to Seller on account of such litigation shall also remain the property or by reason of any rental or other payments which are unpaid as of the Owner Closing Date, but shall be required to turn over Seller's share of the same within ten (10) days if, as and when received by Buyer after the Closing; this provision shall not survive Closing.
5.1.4 Percentage rent, if any, payable under each Space Lease shall be paid prorated with respect to the Contributor lease year thereunder in which Closing occurs on a per diem basis as and when collected. Any percentage rent collected by Buyer including any percentage rent which is delinquent and pertaining to (i) an entire lease year or otherwise subject to proration.
(f) An amount equal to all expenses accounting period of the Project a tenant under a Space Lease which were paid ends on a date prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed Closing Date, or credited to Contributor at the Closing.
(gii) All compensation, fringe benefits and other amounts due the employees that portion of Owner a lease year or the manager accounting period of the Project for the such tenant covering a period prior to the Contribution DateClosing Date where such lease year or accounting period begins prior to the Closing Date and ends thereafter shall in both cases be paid to Seller within ten (10) days of receipt by Buyer; and if any tenant's Space Lease provides for offsets or deductions against percentage rent, whether then such offsets or deductions shall be prorated in the same manner as hourly paythe percentage rent itself is prorated. This provision shall survive Closing. Any percentage rent received by Seller which is to be paid to Buyer under this Section 5 shall be paid to Buyer within ten (10) days of receipt by Seller.
5.1.5 Gas, salarieswater, overtimeelectricity, bonusheat, vacation or sick payfuel, severance pay, pensions or otherwisesewer and other utilities charges to which Section 5.1.1 cannot be applied, and all amounts due for the payment of employment taxes with respect theretogovernmental licenses, permits and inspection fees and operating expenses relating to the Shopping Center, shall be paid by Owner prorated on or a per diem basis.
5.1.6 Common area maintenance expenses and charges shall be prorated. Seller shall be responsible for all common area expenses and charges incurred prior to the Contribution Closing Date, orand Buyer shall be responsible for the same on and subsequent to the Closing Date. All common area expense payments made by each tenant and such charges paid under its Space Lease for the entire lease year during which the Closing occurs, including end-of-year adjustments, if not paidany, an amount equal shall be prorated between Seller and Buyer in the following manner: Not later than three (3) days prior to Closing, Seller shall deliver to Buyer, with regard to each Shopping Center tenant required to pay common area charges, Taxes and similar expenses ("CAM Charges") under its Space Lease, a detailed computation showing all CAM Charge expenses incurred by Seller for the period from the beginning of each such tenant's then current billing period for CAM Charges (e.g., calendar year, lease year, etc.) through the Closing Date, any CAM estimated payments or charges collected by Seller relating to such entire unpaid liability tenant (hereinafter "CAM Estimates"), and a b▇▇▇ for the tenant's pro rata share of CAM Charges (i.e., for CAM charges through the Closing Date net of any such CAM Estimates held by Seller), together with all invoices and other evidence documenting such CAM Charges in detail required by such tenant's Space Lease. Upon approval by Buyer, Buyer and Seller shall instruct Escrow Agent to send any such bills to tenants promptly following Closing, in which event such tenant shall pay any amount shown due directly to Seller, and except as otherwise stated in Section 5.3.3 below Buyer shall have no responsibility to collect same. However, if any tenant rightfully refuses to pay such b▇▇▇ for CAM Charges due through the Closing Date, then Buyer shall resubmit such b▇▇▇ to any such tenant at the same time as Buyer next submits Buyer's own b▇▇▇ to any such tenant; and any payment thereafter made by any such tenant on account of CAM Charges shall belong to and be forwarded within ten (10) days of its receipt to Seller until Seller's b▇▇▇ is paid in full, provided, however, such amounts shall be paid applied first to any amounts due and owing to Buyer for any such CAM Charges for the period in cash which Buyer owns the Property and then to any delinquent CAM Charges due Seller for the period through the Closing Date. Any CAM Estimates for any tenant shall be retained by Seller up to the amount of the pre-Closing CAM Charges payable by such tenant as evidenced by such bills and computations delivered by Seller at Closing, and Buyer shall receive a credit for any excess CAM Estimates collected by Seller.
5.1.7 All unpaid tenant improvement costs or allowances, free rent periods or rental abatements, concessions and other inducements and all brokerage commissions and referral fees relating to the Space Leases shall be the obligation of Seller.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(ia) The amount of all escrows and reserves required under parties acknowledge that the Mortgage Documents which are on deposit on Space Lease for Natural Spa (the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j"Natural Spa Lease") In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to contains a credit or payment at Closing tenant allowance in the amount of Nine Thousand Two Hundred Fifty and 00/100ths Dollars ($9,250.00). If any of such discountsamounts shall remain unpaid on Closing Date, incentives Seller shall deposit the foregoing sums into an escrow account with Escrow Agent at Closing and then Escrow Agent shall disburse such amounts upon the joint direction of Seller and Buyer when and to the extent that the tenant under the Natural Spa Lease ("Natural Spa") has satisfied the conditions for receipt of any portion of the tenant allowance under the Natural Spa Lease ("Natural Spa Disbursement Conditions"). If the Natural Spa Disbursement Conditions have not been satisfied by Natural Spa as to any remaining portion of the tenant improvement allowance on or obligationsbefore July 30, 2015, and Natural Spa has not made a request or asserted a claim for the payment by the landlord under the Natural Spa Lease of any portion of such allowance that remains unpaid, such remaining portions of tenant improvement allowance shall be disbursed by Escrow Agent to Seller. In all eventsthe event that, all debtsas of July 30, obligations2015, chargesNatural Spa has made a request or asserted a claim for Landlord's payment of any portion of the foregoing tenant allowance that remains unpaid, liabilities such remaining portions of tenant improvement allowance shall continue to be held by Escrow Agent to be disbursed upon the joint direction of Seller and liens Buyer as provided above.
(b) The parties acknowledge that the Space Lease for The Nail Spa (the "Nail Spa Lease") contains a tenant improvement allowance in the amount of Twenty-Five Thousand and 00/100ths Dollars ($25,000.00) in connection the expansion of space by The Nail Spa under the Second Amendment to Lease dated February 19, 2014 (the "Nail Spa Amendment"). If any of such amounts shall remain unpaid on Closing Date, Seller shall deposit the foregoing sums into an escrow account with respect Escrow Agent at Closing and then Escrow Agent shall disburse such amounts upon the joint direction of Seller and Buyer when and to the Project extent that the tenant under the Natural Spa Lease ("Nail Spa") has satisfied the conditions for receipt of any portion of the tenant allowance under the Nail Spa Lease ("Nail Spa Disbursement Conditions"). If the Nail Spa Disbursement Conditions have not been satisfied by Nail Spa as to any remaining portion of the tenant improvement allowance on or before July 30, 2015, and Nail Spa has not made a request or asserted a claim for the payment by the landlord under the Nail Spa Lease of any portion of such allowance that remains unpaid, such remaining portions of tenant improvement allowance shall be fully paid disbursed by Escrow Agent to Seller. In the event that, as of July 30, 2015, Nail Spa has made a request or asserted a claim for Landlord's payment of any portion of the foregoing tenant allowance that remains unpaid, such remaining portions of tenant improvement allowance shall continue to be held by Escrow Agent to be disbursed upon the joint direction of Seller and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payableBuyer as provided above.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Companyc) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the Seller has contracted with M▇▇▇▇▇▇ Entities hereunderV Construction ("Contractor") to perform parking lot light replacement at the Shopping Center in the amount of Forty-Seven Thousand Five Hundred Twenty and 00/100ths Dollars ($47,520.00)(the "MV Contract"). The Owner shall Pursuant to the terms of the MV Contract, the work under the MV Contract is scheduled to be completed on or before August 15, 2014. Seller cause Contractor to perform its obligations as and when required under the MV Contract, and in any event as soon as is reasonably practicable under the terms of the MV Contract, and without the existence of any liens relating the work by Contractor. In the event such work is not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after completed by the Closing either SCOLP or Contributor discovers any inaccuracies or errors in Date, Seller shall deposit the pro rations or adjustments done foregoing amount into an escrow account with Escrow Agent at Closing pursuant and then have such amount disbursed upon the joint direction of Seller and Buyer when and to Sections 6.1 and/or 6.2, the extent that such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment work has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be completed in accordance with the terms and conditions of the MV Contract ("MV Contract Disbursement Conditions"). In the event that the work under the MV Contract has not been completed by August 15, 2014, Buyer shall be entitled to cause all remaining work under MV Contract to be completed, and Escrow Agent shall disburse to Buyer the costs of such work within ten (10) days after Buyer delivers to Escrow Agent and Seller written evidence of Buyer's completion of such work, along with copies of invoices therefor, and in such event, Seller shall indemnify, defend and hold Buyer harmless from and against any and all losses, costs, expenses, claims and/or damages suffered by Buyer arising out of claims asserted by Contractor under the MV Contract due to Seller's failure to pay sums owed under the MV Contract. If the MV Contract Disbursement Conditions as to any portion of the amounts owed to Contractor have not been satisfied by Contractor on or before July 30, 2015, and Contractor has not made a request or asserted a claim for the payment by the owner under the MV Contract, such remaining portions of the escrowed amount for the MV Contract shall be disbursed by Escrow Agent to Seller. In the event that, as of July 30, 2015, Contractor has made a request or asserted a claim for Landlord's payment of any portion of the foregoing escrowed amount that remains unpaid, such remaining portions of escrowed amount for the MV Contract shall continue to be held by Escrow Agent to be disbursed upon the joint direction of Seller and Buyer as provided above.
5.1.8 All prepaid rentals, other prepaid payments (other than monthly real estate tax or CAM estimates or installments), security deposits, electric, gas, sewer and water deposits deposited with Seller by tenants, (including any accrued interest required under any Space Lease on all of the foregoing, unless Seller is entitled to retain the benefit thereof) under any Space Leases, license agreements or concession agreements relating to the Property, shall all belong to Buyer and all shall be assigned and delivered to Buyer at Closing, whereupon Seller shall be released from all liability with respect thereto. At Seller's option, Buyer shall receive a cash credit in the amount of all Security Deposits to be delivered to Buyer at Closing, and Seller may retain same.
5.1.9 Buyer shall not be responsible for any charges, salaries, vacation pay or fringe benefits of employees of Seller prior to or following the Closing and none of the foregoing shall be prorated.
5.2 All prorations and payments to be made under the foregoing provisions shall be made on the basis of a written statement or statements delivered to Buyer by Seller and approved by Buyer. In the event any prorations, apportionments or computation shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same, provided that it makes written demand on the one from who it is entitled to such adjustment within three hundred sixty-five (365) days after the erroneous payment or computation was made; this provision shall survive Closing.
5.3 All accounts receivable flowing from the Property shall be treated as follows:
5.3.1 Buyer and Seller agree to treat all base or minimum rental payments received from a tenant as applicable to base or minimum rent which was owed by that tenant, if any, first for the month prior to the month in which Closing occurs and next for the month in which Closing occurs until the base or minimum rental amount due to Seller for such periods have been collected. In the event that there remains any unpaid base or minimum rent for a period prior to such periods, all payments of base or minimum rent received from such tenant shall be applied to sums owed Buyer before any part thereof shall be treated as belonging to Seller. In the event that there remains any unpaid tenant receivable other than base or minimum rent (including without limitation any tax, CAM, insurance or percentage rent payments) for any period prior to Closing, all payments received from any tenant in arrears (whether base or minimum rent or any other amount) shall be applied to any such sums owed Seller from such tenant before any part thereof shall be treated as belonging to Buyer.
5.3.2 In the event that any tenant of Seller or Buyer shall hereafter apply or shall have heretofore applied for relief under the provisions of any bankruptcy or similar laws for the protection of debtors, the provisions of Section 5.3.1 shall not apply, and the parties shall have the right to seek collection of their respective accounts, their entitlements being determined by the Closing and the other provisions of this Agreement. Neither party shall have the right to enter into any transactions that purport to compromise claims belonging to the other, and without the obligations of either party other party's prior written consent.
5.3.3 If at the Closing Date any tenants owe Seller any money, Seller shall have the right, subsequent to pay any the Closing, to collect such amount shall survive sums directly from the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).tenants including bringing lawsuits against th
Appears in 1 contract
Sources: Agreement of Sale (American Realty Capital - Retail Centers of America, Inc.)
Adjustments and Prorations. 6.1 The At Closing, the following adjustments and prorations items shall be made at the Closing adjusted or prorated between SCOLP, Owner Seller and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.Purchaser:
(a) Real estate Ad valorem taxes and personal property taxes which are a lien upon or levied against any portion of for the Project prior to Property for the Contribution Date (other than then current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments calendar year shall be prorated at the Closing effective in cash as of the Closing Date based on a current appraised values. Seller’s pro rata portion of such taxes shall be based upon taxes actually assessed for the then current calendar year basisor, understanding that real estate if for any reason such taxes in for the State of Florida are payable in arrears. Such Property have not been actually assessed, such proration shall be made based upon current appraised values and adjusted by cash settlement when exact amounts are available. If the Property is assessed and taxed as a part of a larger parcel, then, for purposes of computing tax prorations, a proportionate part of the ad valorem taxes attributable to such larger parcel shall be allocated to the Property on the basis of the amount ratio between the number of real estate gross acres of the Property and personal property the total number of gross acres comprising such larger parcel, taking into account the value and location of any improvements located on the larger parcel. All special taxes for the current year if and or assessments approved or assessed prior to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Closing Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may beSeller. Purchaser shall be responsible for and pay prior to delinquency any rollback taxes and shall indemnify and hold Seller harmless against same.
(b) The amount Seller agrees to pay (i) one-half of all unpaid water and other utility bills customary escrow fees generally charged by the Title Company; (ii) the premium for the Project which are not directly billed to the tenants standard Owner’s Title Policy; (iii) costs and expenses for preparation of the Project, and all other operating and other expenses incurred with respect Deed; (iv) any costs for recording fees; (v) up to $15,000 as reimbursement to Purchaser for the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part cost of the cash adjustment at Closing. The amount of all prepaid water Survey; and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date(vi) Seller’s own attorney fees.
(c) Charges under Project Contracts Purchaser agrees to pay (as defined belowi) attributable one-half of all customary escrow fees generally charged by the Title Company; (ii) the premium of any endorsements to the period prior Owner’s Title Policy; (iii) all costs and expenses relating to financing the Contribution Date shall be paid by Owner or Contributor prior to Purchase Price for the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after Property; and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date(iv) Purchaser’s own attorney’s fees.
(d) All rental and other revenues collected by Owner up bills or charges pertaining to the Contribution Property as of the Closing Date which are allocable to the period shall be paid by Seller prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 belowClosing.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree The agreements as to prorations and adjustments in this Section shall survive the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such RentsClosing. In the event that, subsequent to the parties are unable to agreeClosing, the Owner shall apply any payments received during the period between adjustments made at the Closing Date and pursuant to this Section are determined by the date which is ninety days after the Closing Date, first Title Company to the cost of collecting such paymentsbe erroneous, then either party hereto who is entitled to additional monies shall invoice the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not other party for such additional amounts as may be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLPowing, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any within ten days from receipt of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payableinvoice.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes Subject to the terms of this Agreement, all revenues and all expenses arising from the Business, including business and license fees, utility charges and all other fees or charges arising under real and personal property taxes which are a lien upon or Taxes and assessments levied against any portion the Assets, property and Equipment rentals, applicable copyright or other fees (including program license payments), sales and service charges, Taxes (except for Taxes arising from the transfer of the Project prior to the Contribution Date (other than current taxesAssets hereunder), annual regulatory fees, amounts owing in respect of unlicensed software, music license fees and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate similar prepaid and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project)deferred items, shall be prorated on an accrual basis. SCOLP shall either pay between Seller and Buyer in accordance with GAAP and subject to the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or general principle that Seller shall receive a credit the benefit of all revenues, and be responsible for the pro rata share of the collected Rents received for the Closing Month. In addition all costs, expenses and Liabilities, allocable to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, Station for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLPDate, and Buyer shall not receive the benefit of all revenues, and be paid to or distributed responsible for all costs, expenses and Liabilities, allocable to the Contributor. The Owner Assets on or after the Closing Date, including that Seller shall not distribute or assign receive a credit for all prepaid expenses incurred by Seller with respect to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred Assets on and after the Closing Date Date. Notwithstanding the foregoing, Seller shall be entitled to all revenue and bear all expenses and Liabilities related to the responsibility Excluded Assets and the Non-Assumed Liabilities both prior to and after the Closing Date, except as provided in Section 5.2(c) hereof.
(b) Seller shall prepare and submit to Buyer, not later than five (5) Business Days prior to the Closing Date, a good faith written estimate of Owner the adjustments and prorations set forth in subsection (a) above that remain unpaid as of Closing (the “Adjustments”) in accordance with this Section 2.3, along with Seller’s estimate of the Purchase Price resulting from the Adjustments (“Seller’s Estimate”). After delivery of Seller’s Estimate, including all supporting documentation of any proposed Adjustments, Buyer and Seller shall in good faith attempt to resolve prior to Closing any disputes between them with respect to the determination of the Closing Cash Payment. If as of Closing any items shall be in dispute between them with respect to the Closing Cash Payment, Seller’s Estimate, as adjusted to reflect any changes to the Adjustments agreed to by the Parties, shall be used as the amount of the Closing Cash Payment payable by Buyer on the Closing Date, with such disputed items to be settled between the Parties following Closing pursuant to subsections (c) and (d) below.
(c) Buyer shall prepare and submit to Seller, not later than sixty (60) days following the Closing Date, Buyer’s written good faith determination of the Adjustments, including any changes to the preliminary Adjustments used to determine the Closing Cash Payment and all supporting documentation of any additions or modifications to the preliminary Adjustments, along with a calculation of the Purchase Price resulting from the Adjustments as determined by Buyer (“Buyer’s Calculation”). After delivery of Buyer’s determination of the Adjustments and Buyer’s Calculation to Seller, Seller may furnish Buyer, within fifteen (15) Business Days following delivery of Buyer’s Calculation, with written notification setting forth in reasonable detail any disputes Seller has with Buyer’s determination of the Adjustments and Buyer’s Calculation. In the event that Seller does not provide such a written notification within such fifteen (15) Business Day period, Seller shall be deemed to have accepted the Adjustments and Buyer’s Calculation, which shall be final, binding and conclusive for all purposes hereunder. In the event any such written notification is timely provided, then Buyer and Seller shall, for a period of ten (10) Business Days (or such longer period as they may mutually agree), in good faith attempt to resolve any disputes between them with respect to the determination of the Purchase Price, with each Party claiming an adjustment to its credit providing the other with any documentation reasonably requested by the other Party to determine the appropriateness of such claimed Adjustment. In no event shall Buyer or Seller be permitted to dispute any item or amount that was agreed to prior to Closing in the determination of the Closing Cash Payment.
(d) If, following such ten (10) Business Day period, the Parties cannot agree on the amount of the final Adjustments, the determination shall be made by a national or regional accounting firm jointly designated by the Parties (the “Auditor”). The Auditor shall make the determination based on GAAP in effect on the Closing Date. Either Party may invoke the use of the Auditor by notifying the other Party in writing. In the event that either Party invokes the use of the Auditor, there shall be a thirty (30) day period (the “Discovery Period”) when the Parties may request of and shall provide to each other in writing or computer format where appropriate any documentation or records in the possession of the other Party that are related to a claim or defense to be made to the Auditor. Fifteen (15) Business Days after Closing the expiration of the Discovery Period, the Parties shall have the opportunity to present their claims and supporting documentation to the Auditor. The Parties shall use their commercially reasonable efforts to cause the Auditor to render a decision within fifteen (15) Business Days after each Party shall have presented (or have foregone the opportunity to present) its claims and supporting documentation to the Auditor. The decision of the Auditor shall be final and binding on the Parties and shall not be charged subject to Contributorany judicial challenge by either Party. Sums received on account of such litigation shall also remain Within five (5) Business Days after the property of Auditor provides the Owner and shall not be paid determination to the Contributor or otherwise subject Parties, payment in accordance with that determination shall be made by the appropriate Party by wire transfer of immediately available funds in U.S. dollars, to proration.
(f) An amount equal an account designated by the Party entitled to all receive such payment. The expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, Auditor shall be paid by Owner the Party which, based on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, Auditor’s resolution of the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributordisputed item(s), shall be paid by Contributor and shall is not be charged to, or the responsibility of SCOLPprevailing Party.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations Seller shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
pay (a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (yi) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date counsel representing it in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loantransaction, and (ii) one-half (1/2) of any escrow fee charged by the costs and expenses payable by Owner, Holding Title Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against hold the ▇▇▇▇▇▇▇ Entities hereunderMoney. The Owner Buyer shall pay all other closing costs, including, without limitation (i) any and all state and county transfer taxes, deed recording fees, documentary stamp taxes, property owners’ association transfer/resale assessments and other taxes and fees imposed on account of the recordation of the Deed and/or the transfer of the Property, (ii) the fees of any counsel representing Buyer in connection with this transaction, (iii) one-half (1/2) of any escrow fees charged by the Title Company, (iv) recording fees, (v) the premium for the Title Policy and Title Commitment costs, (vi) the cost of Buyer’s inspections of the Property and (vii) any costs associated with the Survey. Except as otherwise provided in the Agreement, all other costs and expenses incident to this transaction and the closing thereof shall be paid by the party incurring such costs. Except for assessments charged by a property owners’ association in connection with the transfer/sale of the Property, if any, which are to be paid by ▇▇▇▇▇, general, special, ad valorem, personal property and other property taxes and assessments imposed by any governmental authority and any association assessments, fees and dues (collectively, the “Taxes”) for the then-current calendar year should be prorated. If the Closing Date occurs prior to the receipt by Seller of all tax bills for the calendar year, Buyer and Seller shall prorate Taxes for such calendar year based on the previous year and a post-closing “true-up” shall take place once all tax bills for the calendar year are received. Buyer shall pay all increases in Taxes due to the change in ownership or use of the Property and the same shall not distribute any other rightbe prorated. All utility bills for the Property shall be prorated. In the event Seller has not received utility bills through the Closing Date, claim, cause of action or asset after utilities shall be prorated based on the Effective Date of this Agreement.
6.3 If most recent bills and a post-closing “true-up” shall take place within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant Closing. Buyer shall pay to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error Seller all utility deposits paid by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues Seller with respect to delinquent revenue the Property REPRESENTATIONS AND WARRANTIES: Seller shall only make representations regarding Seller’s authority to enter into the Agreement and Seller’s knowledge of environmental issues and pending claims and violations. Except for such representations and warranties by Seller and the prorations and adjustments done limited warranty contained in the deed to be provided by Seller at Closing, Buyer will take the Property at Closing pursuant to Section 6.1. After the parties resolve on an “As- Is” and “Where Is” basis without representation, covenant, or warranty of any such issues kind (whether express, implied, or, in to the event the parties are unable to resolve issuesmaximum extent permitted by applicable law, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)statutory) by Seller.
Appears in 1 contract
Sources: Letter of Intent
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion All revenues arising from the conduct of the Project business of Seller earned or accrued up until 11:59 p.m. on the day prior to the Contribution Date (other than current taxes)Closing Date, and all special assessments levied on operating expenses arising therefrom incurred, accrued or payable up until such time, including tower rentals, business and license fees, utility charges, taxes (including without limitation any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project Assets), property and equipment rentals, applicable to the period after the Contribution Date copyright or other similar fees, sales and service charges, and operating expenses arising under Assumed Contracts shall be prorated between Buyer and adjusted between Seller in accordance with the principals that
(1) Seller shall receive all revenues, refunds and deposits of Seller held by third parties on a calendar year basis and shall be responsible for all operating expenses incurred, payable or allocable to the conduct of the business and operations of the business for the period ending at 11:59 p.m. on the day prior to the Closing Date, and
(2) Buyer shall receive all revenues, refunds and deposits of Seller and shall be responsible for all operating expenses incurred, payable or allocable to the conduct and operations of the business for the period commencing on and continuing after the Closing Date. Unless otherwise credited to Buyer, an adjustment to the Purchase Price and proration shall be made in favor of Buyer to the extent that Buyer assumes any liability under any Assumed Contract to refund (or to credit against payments otherwise due) any security deposit or other prepayment paid by Contributor or SCOLP, as the case may beto Seller.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed Adjustments or prorations pursuant to this Paragraph 4 will, to the tenants of the Projectextent feasible, be determined and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of Seller's good faith calculation delivered to Buyer no less than five (5) days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition prior to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and reasonably approved by Buyer, with final settlement and payment by the date which is ninety appropriate party occurring no later than 60 days after the Closing Date. Within 60 days after the Closing Date, first Buyer shall submit to the cost Seller its good faith determination of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closingany adjustments or prorations required by this Paragraph 4. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for Buyer's determination of the amount of accrued any such adjustments under this Paragraph 4 shall be made in accordance with generally accepted accounting principles, consistently applied. If Seller disagrees with Buyer's determination of any such adjustments, Seller shall give Buyer prompt written notice thereof, but unpaid utility fees due from in no event later than 20 days after its receipt of notice of Buyer's determination, specifying in reasonable detail the tenants with respect to periods prior to Closing. To the nature and extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLPSellers' disagreement, and Buyer and Seller shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, a period of unpaid Rents. Any eviction actions 30 days in which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1disagreement. After the parties resolve any such issues or, in the event If the parties are unable to resolve issuesthe disagreement within the 30 day period, Buyer and Seller shall jointly select and retain an independent certified public accounting firm, which accounting firm shall be directed to submit a final judgment has been rendered with respect to such resolution of the matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments within 30 days. The accounting firm's determination shall be binding upon Buyer and Seller. Each party shall bear the fees and expenses of its own representatives, including its independent accountants, if any, and shall share equally the fees and expenses of any independent certified public accounting firm engaged to resolve any disagreement between the parties. Within five (5) business days following a final resolution hereunder, the party obligated to make payment will make the payments determined to be due and owing in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)Paragraph 4.
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and All prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion computed as of the Project day before the Closing Date (“Proration Date”) so that Purchaser shall receive the benefit of the rent and be responsible for the expenses of the Property as of the Proration Date. At least five (5) days prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Closing Date, Seller shall be paid by Owner or Contributor prior provide to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date Purchaser a reconciliation, on a calendar year tenant by tenant basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts rents (as defined below) attributable to for the period prior to Property for the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved current year. The term “Rents,” as used in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on chargesthis Agreement, shall become a part of include any and all payments due to Seller under the disbursement applicable Space Leases from Owner to tenants under the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date applicable Space Leases, including, without limit, tenant rentsbut not limited to, pass-through charges for real estate taxes, property insurance and common area maintenance charges. Notwithstanding anything to the contrary contained herein, pass-on chargesthe obligations of Purchaser and Seller in this Section 6 shall survive Closing. Prior to Closing, water Seller shall have performed (and other periodic revenues (settled) all reconciliations with tenants under the “Rents”) Space Leases for all years prior to the calendar year of the Closing.
6.1 No arrearages of Rents for months prior to the month in which the Closing Proration Date occurs will be prorated. Provided that Seller has provided Purchaser with full, complete and correct documentary support for all Rent arrearages, Purchaser shall make reasonable commercial efforts (the “Closing Month”)not including resorting to litigation, termination or recovery of possession) at Seller’s expense to collect such Rent arrearages and Rents not delinquent more than thirty days upon receipt thereof shall pay such amounts to Seller. Any amounts collected from any tenant having an unpaid Rent balance as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated applied in the manner indicated by the tenant on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); its payment, and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoingif none is indicated, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, then first to the cost of collecting such paymentsPurchaser for amounts currently owing, then to the most recent charges due andmonth of Closing, thereafteradjusted between Seller and Purchaser, then to unpaid charges due Purchaser for Rents delinquent as of the date of collection and accruing after the Closing, and then to Seller to the extent of arrearages of Rent prior to Closing. Any payments received .
6.2 Base rent under the Space Leases prepaid for any time after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Proration Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner security deposits will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment Purchaser at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any . Any letters of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP credits shall be entitled transferred to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In Purchaser with all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully transfer fees paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payableby Seller.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland Real Estate Income Trust, Inc.)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLPSCOLP and Assignor, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall be computed to, but not be an adjustment to including, the Units to be issued at ClosingClosing Date.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project for any period prior to the Contribution Date (other than current taxes)tax year 2012, and all special assessments levied on any portion of the Project prior to the Contribution Closing Date, shall be paid by Owner or Contributor Assignor prior to the Contribution Closing Date. Current In addition, Assignor shall pay or provide a credit to SCOLP prior to Closing for Assignor’s share of any real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be for tax year 2012 prorated and adjusted between the parties to the Closing Date. Any sales taxes, manufactured home or vehicle transfer, sales and use taxes and other taxes or charges levied on a calendar year basis the transfer and conveyance of the Project whether levied on the Land, Improvements, Personal Property or otherwise, or on the Membership Interests, shall be paid by Contributor or SCOLP, as the case may beAssignor.
(b) The amount of all unpaid water All water, sewer, electric, gas and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project (collectively, “Operating Expenses”) shall be prorated between Assignor and Owner, and relating SCOLP to the period prior to the Contribution Closing Date, with Assignor being responsible for all Operating Expenses on the Closing Date. On or before Closing, the parties shall be paid by Owner or Contributor agree on a reasonable proration of all unbilled Operating Expenses based upon the most recent billing statement. At Closing, (i) Assignor shall pay all unpaid Operating Expenses that are billed at or prior to the Contribution Date or, if not paid, an amount equal Closing Date; (ii) SCOLP shall assume all unbilled Operating Expenses; and (iii) Assignor shall pay or provide a credit to such unpaid expenses SCOLP for Assignor’s pro rata share of all unbilled Operating Expenses. All refundable utility deposits shall be part the property of SCOLP, and the cash adjustment at Closing. The total verifiable amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, such refundable security deposits shall be paid by SCOLP credited to Contributor on Assignor at the Contribution DateClosing.
(c) Charges under Assumed Project Contracts (as defined belowin Section 17) attributable to the period prior to the Contribution Closing Date shall be paid by Owner or Contributor Assignor prior to the Contribution Closing Date, or, if not paid, the amount due shall be reserved in cash within the Owner credited to SCOLP as of the Contribution Closing Date. Prepaid All charges under the Non-Assumed Project Contracts (as defined in Section 17 below), if any, shall be paid by Assignor, whether such charges are attributable to the period prior to the Closing Date or the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Closing Date.
(d) All rental and other revenues collected (including telephone, amenities, golf and other revenue),collected by Owner Assignor or Palm Creek up to the Contribution Closing Date which are allocable to the period prior to the Contribution Date, including without limit pass-through from and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition by Assignor to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to ClosingSCOLP. To the extent SCOLP collects, within ninety (90) days after the Closing, any Rents rental or revenues allocable to the period prior to the Closing Date are Date, SCOLP shall pay the same to Assignor; provided, however, SCOLP shall have no obligation whatsoever for the collection of such rentals or revenues and all rentals and revenues collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid subsequent to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall always, in the first instance, be applied first to the responsibility of Owner most current rentals and revenues, if any, then due under the Tenant Leases or otherwise. SCOLP shall have no obligation to remit to Assignor any such delinquent rents collected later than ninety (90) days after Closing the Closing.
(e) An amount equal to all refundable reservation, security and shall not other deposits described in the Rent Roll, together with any interest accrued thereon (to the extent applicable law requires interest to be charged to Contributor. Sums received on account paid by the holder of such litigation deposits) shall also remain be credited to SCOLP at the property of the Owner and shall not be Closing if previously distributed or paid to the Contributor or otherwise subject to prorationAssignor.
(f) SCOLP shall pay Assignor $2,600,000.00 to reimburse Assignor for the construction of Phase III and the related sports amenities. An amount equal to all expenses of the Project which were paid prior to the Contribution Closing Date and for which Owner are allocable to periods after the Closing Date which will benefit after the Contribution Date SCOLP shall be disbursed or credited to Contributor Assignor at the Closing. An amount equal to all expenses of the Project which are due after the Closing Date for all capital equipment or other leases shall be credited to SCOLP.
(g) All compensation, fringe benefits and other amounts due the employees of Owner Assignor, Palm Creek or the manager of the Project for the period prior to the Contribution Closing Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner Assignor on or prior to the Contribution Closing Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash credited to SCOLP at the Closing.
(h) All costs and expenses incurred by Owner, the Holding Company Assignor or Contributor Palm Creek prior to the Contribution Closing Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, fees and the costs and expenses payable by Owner, Holding Company Assignor or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor)Palm Creek hereunder, shall be paid by Contributor Assignor and shall not be charged to, or the responsibility of Palm Creek or SCOLP.
(i) The amount of All interest accrued for the Assumed Debt through the Closing Date, and all escrows other fees and reserves required charges due or accrued under the Mortgage Documents or otherwise with respect to the Assumed Debt as of the Closing Date (including all assumption fees, which are on deposit on the Contribution Date shall be borne by Assignor), shall be paid by SCOLP to Assignor on or before the Contributor on the Contribution Date Closing Date, or, if not paid, an amount equal to the entire amount of such escrows accrued interest, fees and reserves charges shall be credited to Contributor in connection with SCOLP as of the cash adjustment at ClosingClosing Date.
(j) In All escrows and reserves under the event Assumed Debt and the Mortgage Documents that were funded by the Assignor under the Assumed Debt which will remain in place after the Closing for the benefit of SCOLP and Palm Creek shall be credited to the Assignor.
(k) If any rental discounts, leasing incentives Tenant Lease or other creditsdocument, incentives agreement or obligations have been provided to program for the rent payable by any tenant after the Closing Date is less than the full pro forma or budgeted rent as set forth on the Rent Roll, whether as a result of the occupants free rent, reduced rent or any other form of rent concessions (in each case, a “Rent Concession”), at the Project for any reason, and the same have not been fully satisfied by Closing, Closing SCOLP shall be entitled to a credit or payment at Closing from the Assignor in the an amount equal to sum of all such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect rent concessions attributable to the Project shall be fully paid and satisfied or credited or paid to SCOLP on period after the Contribution Closing Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Closing Date, Contributor (directly or indirectly through the Holding Company) Assignor shall be entitled to a distribution from Owner Palm Creek in an amount equal to all of the cash and cash equivalent assets held by Owner Palm Creek as of the Contribution Closing Date, after deduction for any and all costs, costs and expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities Assignor hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 6.4 If within ninety (90) days after the Closing either SCOLP or Contributor Assignor discovers any inaccuracies or errors in the pro rations prorations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The In such event, the parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor Assignor shall promptly take all action and pay all sums necessary so that such pro rations prorations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Closing Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Limited Liability Company Interests Assignment Agreement (Sun Communities Inc)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior Subject to the Contribution Date terms of this Agreement (other than current taxes)including, and all special assessments levied on any portion the treatment of the Project prior Accounts Receivable pursuant to the Contribution DateSection 6.11, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective which if uncollected as of the Closing Date on a calendar year basisshall become the property of Buyer without proration or adjustment under this Section 2.3), understanding that real estate taxes in all revenues and all expenses arising from the State of Florida are payable in arrears. Such proration shall be made on the basis operation of the amount of real estate Station, including tower rental, business and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements thereforlicense fees, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, charges and all other operating and other expenses incurred fees or charges arising under the Real Property Leases or payable with respect to the Project Owned Real Property; real and Ownerpersonal property Taxes and assessments levied against the Assets; property and Equipment rentals; applicable copyright or other fees (including program license payments); sales and service charges; annual regulatory fees; amounts owing in respect of unlicensed software; music license fees; and similar prepaid and deferred items shall be prorated between Seller and Buyer in accordance with GAAP and the general principle that Seller shall receive the benefit of all revenues, and relating to the period prior to the Contribution Datebe responsible for all costs, shall be paid by Owner or Contributor on or prior to the Contribution Date orexpenses and Liabilities, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) Station for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected Date, and Buyer shall receive the benefit of all revenues, and be responsible for all costs, expenses and Liabilities, allocable to the Station on or after Closingthe Closing Date, they subject to the following:
(1) There shall remain the property be no proration for goods or services to be received by Seller under Barter Agreements in excess of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going Barter Basket as of the Closing Date and Seller shall retain all liability with respect to Barter Agreements that exceed the expense of any legal fees associated with such eviction actions incurred on Barter Basket.
(2) Seller shall be entitled to all revenue and bear all expenses and Liabilities related to the Excluded Assets and the Non-Assumed Liabilities both prior to and after the Closing Date Date.
(3) Seller shall receive a credit for any security deposits held by lessors of the Real Property Leases (other than Subleases) and Buyer shall receive a credit for any security deposits held by Seller as sublessor under any Subleases.
(4) There shall be no proration for Accounts Receivable that remain uncollected as of the responsibility Closing Date in compliance with Section 6.11.
(b) Seller shall prepare and submit to Buyer, not later than five (5) Business Days prior to the Closing Date, a good-faith written estimate of Owner the adjustments and prorations set forth in subsection (a) above (the “Adjustments”) in accordance with this Section 2.3, along with Seller’s estimate of the Purchase Price resulting from the Adjustments (“Seller’s Estimate”). After delivery of Seller’s Estimate, including all supporting documentation of any proposed Adjustments, Buyer and Seller shall in good faith attempt to resolve prior to Closing any disputes between them with respect to the determination of the Closing Cash Payment. If as of Closing any items shall be in dispute between them with respect to the Closing Cash Payment, Seller’s Estimate, as adjusted to reflect any changes to the Adjustments agreed to by the Parties, shall be used as the amount of the Closing Cash Payment payable by Buyer on the Closing Date, with such disputed items to be settled between the Parties following Closing pursuant to subsections (c) and (d) below, and the size of the Indemnity Fund shall be increased by the amount in dispute, which increase shall be disbursed to Seller or returned to Buyer, as appropriate, as part of the settlement between the Parties upon the completion of the adjustment process pursuant to subsection (c) and if applicable, subsection (d) below.
(c) Buyer shall prepare and submit to Seller, not later than thirty (30) Business Days following the Closing Date, Buyer’s written good-faith determination of the Adjustments, including any changes to the Adjustments used to determine the Closing Cash Payment, along with a calculation of the Purchase Price resulting from the Adjustments as determined by Buyer (collectively, the “Buyer’s Calculation”), including all supporting documentation and the calculation of any amounts. Notwithstanding the foregoing, if the actual amount of Taxes payable with respect to Real Property is not available as of the Closing Date or within thirty (30) days thereafter, Buyer may prepare and submit Buyer’s Calculation, with respect to such Taxes only, within thirty (30) days after the date Buyer receives the final Tax Statement for such period, but Buyer’s Calculation shall be deemed delivered upon its earlier delivery without the calculations with respect to such Taxes. After delivery of Buyer’s Calculation to Seller, Seller may furnish Buyer, within ten (10) Business Days following delivery of Buyer’s Calculation, with written notification setting forth in reasonable detail any disputes Seller has with Buyer’s determination of the Purchase Price in Buyer’s Calculation. In the event that Seller does not provide such a written notification within such ten (10) Business Day period, Seller shall be deemed to have accepted the Adjustments and Buyer’s Calculation delivered by Buyer, shall be final, binding and conclusive for all purposes hereunder. In the event that Seller provides a timely written notification to Buyer, then Buyer and Seller shall, for a period of ten (10) Business Days (or such longer period as they may mutually agree), in good faith attempt to resolve any disputes between them with respect to the determination of the Purchase Price, with each Party claiming an adjustment to its credit providing the other with any documentation reasonably requested by the other Party to determine the appropriateness of such claimed Adjustment.
(d) If, following such ten (10) Business Day period, the Parties cannot agree on the amount of the final Adjustments, the determination shall be made by a national or regional accounting firm jointly designated by the Parties (the “Auditor”). No member, partner, officer, or employee of either Seller or Buyer or their respective Affiliates shall have any business or familial relationship (as defined in the FCC’s rules) with any officer, employee, director, member, stockholder, partner or Affiliate of the Auditor. No member, partner, officer, employee, or director of the Auditor or its Affiliates (if any) shall have any business or familial relationship (as defined in the FCC’s rules) with either Seller or Buyer. The Auditor shall make the determination based on GAAP in effect on the Closing Date. Either Party may invoke the use of the Auditor by notifying the other Party in writing. In the event that either Party invokes the use of the Auditor, there shall be a thirty (30) day period (the “Discovery Period”) when the Parties may request of and shall provide to each other in writing or computer format where appropriate any documentation or records in the possession of the other Party that are related to a claim or defense to be made to the Auditor. Fifteen (15) Business Days after the expiration of the Discovery Period, the Parties shall have the opportunity to present their claims and supporting documentation to the Auditor. The Parties shall use their commercially reasonable efforts to cause the Auditor to render a decision within fifteen (15) Business Days after each Party shall have presented (or have foregone the opportunity to present) its claims and supporting documentation to the Auditor. The decision of the Auditor shall be final and binding on the Parties and shall not be charged subject to Contributorany judicial challenge by either Party. Sums received on account of such litigation shall also remain Within five (5) Business Days after the property of Auditor provides the Owner and shall not be paid determination to the Contributor Parties, payment in accordance with that determination shall be made by release of any amount by which the Indemnity Fund was increased pursuant to Section 2.3(b) above to the appropriate Party or otherwise subject Parties, with any additional amounts paid by the appropriate Party by wire transfer of immediately available funds in U.S. dollars, to proration.
(f) An amount equal an account designated by the Party entitled to all receive such payment. The expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, Auditor shall be paid by Owner the Party which, based on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, Auditor’s resolution of the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributordisputed item(s), shall be paid by Contributor and shall is not be charged to, or the responsibility of SCOLPprevailing Party.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current 10.1 All taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney real estate taxes and other professional feespersonal property taxes, the Acquisition Loancollected rents, charges for utilities, including water, sewer, and the fuel oil, and for utility services, maintenance services, maintenance and service contracts, all operating costs and expenses payable by Ownerexpenses, Holding Company or Contributor hereunder and all other income, costs, and charges of every kind which in any manner relate to the operation of the Property (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), but not including insurance premiums) shall be paid prorated to the Date of Closing, except that if Seller does not receive the Purchase Price (by Contributor and receipt of wired funds or by receipt in hand of an official bank cashier's check) by noon, E.S.T., on the Date of Closing, all prorations shall not be charged tomade as of the following business day. If the amount of said taxes, assessments, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit rents is not known on the Contribution Date of Closing, they shall be paid by SCOLP to the Contributor apportioned on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any basis of the occupants at amounts for the Project for any reasonpreceding year, with a reapportionment as soon as the new amounts can be ascertained. If such taxes and the same have not been fully satisfied assessments shall thereafter be reduced by Closingabatement, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discountsabatement, incentives less the reasonable cost of obtaining the same, shall be apportioned between the parties, provided that neither party shall be obligated to institute or obligationsprosecute proceedings for an abatement unless otherwise agreed. In all eventsBuyer shall be responsible for the payment of any assessments or notice of assessments made after the date of execution hereof for any public improvement, all debts, obligations, charges, liabilities and liens with provided Buyer takes title hereunder. With respect to security deposits, if any, made by tenants at the Project Property and actually received in hand by Seller, Buyer shall receive credit therefor. Any deposits on utilities paid by Seller shall be fully paid returned to Seller. The foregoing provisions of this Section 10.1 shall not apply to any taxes, assessments, or other payments which are directly payable by tenants under their leases or reimbursable by such tenants to the owner of the Property, as landlord, under their leases. All adjustments and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage prorations shall be approved by Buyer and the lien for taxes not yet due and payable.
6.2 On or Seller one (1) business day prior to Closing. On the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this AgreementClosing, Seller shall deliver to Buyer all inventories of supplies on hand at the Property owned by Seller, if any, at no additional cost to Buyer.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hancock John Realty Income Fund LTD Partnership)
Adjustments and Prorations. 6.1 The following adjustments Adjustments and prorations with respect to the Property shall be made at computed and determined between the parties as of 12:01 a.m. on the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.Date as follows: 17
(a) Real General real estate taxes taxes, special assessments and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made based on the basis of then current taxes (if known, based on final tax bills for such period, and if not known, based on the amount of most recent ascertainable taxes) and the special assessments due and owing prior to Closing, and Seller or Purchaser shall receive a credit at Closing, as appropriate. Without affecting the obligations set forth in this Section 13, the prorations for real estate and personal property taxes shall be equitably prorated on a “net” basis (i.e., adjusted for all tenants’ liabilities and payments of additional rent under the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed Leases for the current tax year plus an estimated increase proportionate share of 5%. Real estate taxes and personal property assessments if any, for such items). If final taxes levied against any portion or special assessments are not known as of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between Closing, the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may beagree to reprorate when such amounts become known.
(b) The amount of all unpaid water All rents and other utility bills for the Project which are not directly billed to the sums receivable from tenants of the ProjectProperty, which were earned and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall Closing Date, will be paid by Owner or Contributor prior credited to Seller to the Contribution Date, or, if not paid, extent that such rents have been collected on or before the amount due shall be reserved in cash within the Owner as of the Contribution Closing Date. Prepaid charges under Project Contracts Rents earned and attributable to the period after beginning on the Closing Date and including the Contribution Date shall thereafter will be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which Company by the tenants, or credited to Purchaser at Closing (if such rents are allocable received by the Company prior to the Closing Date). All payments from tenants, on account of rent or otherwise, received by Seller on behalf of the Company after the Closing Date, whether attributable to the period prior to or after the Contribution Closing Date, including without limit pass-through shall be deemed to be held in trust by Seller for Purchaser and pass-shall be promptly delivered to Purchaser by Seller for application as provided in this Section 13. All payments from tenants, on chargesaccount of rent or otherwise, received after the Closing Date by the Company or by Purchaser on behalf of the Company and all amounts received from Seller by Purchaser pursuant to the immediately preceding sentence, shall become a part of be applied first to rent or other sums then due under the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner Leases attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such paymentsoccurs, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received period after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect Date on account of rents earned and attributable to such Rents. In addition period, and then to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount Seller on account of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable rents which were earned and attributable to the period prior to the Closing Date are collected after Closing, they Date. Any customary out-of-pocket costs incurred by Purchaser in collection of delinquent rentals shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed deducted by Purchaser prior to the Contributorpayment to Seller on account of delinquent rentals as provided herein. The Owner Purchaser shall cause the Company to ▇▇▇▇ tenants for delinquent rentals, but need not distribute or assign to the Contributor and the Contributor initiate legal proceedings. Seller shall not have the right to seek collectioncontact tenants to request payment of delinquent rentals after the Closing Date and institute legal proceedings to collect such delinquent rentals, through litigation or otherwise, of unpaid Rentsbut shall have no right to evict any tenant. Any eviction actions such enforcement or collection efforts by Seller shall be at Seller’s sole expense.
(c) On the Closing Date, Seller shall either (i) deliver to the Company if not already held by it, in cash, or (ii) receive as a credit against the Purchase Price, an amount equal to all cash security deposits made by tenants occupying the Property which were paid to the Company by such tenants and which shall not have been applied by the Company or otherwise pursuant to the Leases, together with interest owing thereon pursuant to the applicable Lease, if any, and together with a listing (certified as true and correct by Seller) of the tenants to which such deposits and interest are onowing.
(d) All amounts payable, owing or incurred in connection with the Property under the Contracts to be retained by the Company shall be prorated as of the Closing Date. 18
(e) All utility deposits, if any, may be withdrawn by and refunded to Seller, and Purchaser shall make replacement deposits on behalf of the Company for utilities as may be required by the respective utilities involved.
(f) All utility charges that are not separately metered to tenants shall be prorated to the Closing Date and Seller shall obtain a final billing therefor and pay any amounts owing therein for the period prior to the Closing Date and Purchaser shall pay any amounts owing for the period on and after the Closing Date. To the extent that utility bills cannot be handled in the foregoing manner, they shall be prorated as of the Closing Date based on the most recent bills available and reprorated when such final bills become known.
(g) Purchaser shall pay all leasing commissions and tenant improvement costs payable with respect to Leases (other than for any Required Lease) approved by Purchaser and entered into after the date of this Agreement in accordance with the terms of Section 19(b) of this Agreement. If Seller has paid or caused the Company to pay such amounts prior to the Closing Date, Purchaser shall reimburse Seller for such payments at Closing. Seller shall pay all other leasing commissions and tenant improvement costs payable with respect to all other Leases except those referenced in the preceding sentence. (h) Seller and Purchaser agree that as soon as reasonably possible after the close of the calendar year of the Closing, the parties shall undertake a final master reconciliation of CAM, taxes and other pass-going throughs and additional rent (including without limitation, percentage rent) with respect to the Leases and the Property. Such reconciliation shall be final. For purposes hereof, Seller and Purchaser shall each prepare tenant reconciliations for their respective applicable periods of ownership of the Interests. Purchaser shall transmit such information to the tenants.
(i) Unless provided otherwise hereinabove, such other items as are customarily prorated in a purchase and sale of the type contemplated hereunder shall be prorated as of the Closing Date.
(j) All wages, salaries and benefits of retained Employees, if any, shall be apportioned between Purchaser and Seller.
(k) Notwithstanding anything in this Section 13 to the contrary, if any tenant under a Lease is obligated to pay any prorated item directly to the entity imposing same, such portion of the prorated item shall not be apportioned between Seller and Purchaser. If any item of income or expense set forth in this Section 13 is subject to final adjustment after Closing, then Seller and Purchaser shall make, and each shall be entitled to, an appropriate reproration to each such item promptly when accurate information becomes available, but in any event prior to one (1) year from the date of Closing. Any such reproration shall be paid promptly in cash to the party entitled thereto.
(l) All insurance policies and Seller’s property manager’s management agreement and listing agreement (if any) shall be terminated as of the Closing Date and there shall be no proration with respect to these items. 19
(m) Each of the expense provisions of any legal fees associated with such eviction actions incurred on and after this Section 13 shall survive the Closing Date shall be until the responsibility later of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount one (1) year from the date of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
Closing or (jii) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to real estate taxes three (3) months after the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all issuance of the cash and cash equivalent assets held by Owner as of final tax bills for the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after year in which the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)occurs.
Appears in 1 contract
Adjustments and Prorations. 6.1 The following adjustments and prorations 5.1 Seller shall be made at entitled to all income produced from the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion operation of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date Property which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after and shall be responsible for all expenses allocable to that period; and Buyer shall be entitled to all income and responsible for all expenses allocable to the period beginning at 12:01 A.M. on the Closing Date. At Closing, they all items of income and expense with respect to the Property shall remain be prorated in accordance with the property foregoing provisions and the rules for the specific items set forth hereafter:
5.1.1 Seller shall arrange for a billing under a11 those Service Contracts for which fees are based on usage and with utility companies for a billing for utilities, to include all utilities or service used up to the Closing Date, and Seller shall pay the resultant bills. In the event any of the Owner Service Contracts set forth in EXHIBIT 3 cover periods beyond the Closing Date the same shall be prorated on a per diem basis.
5.1.2 Real estate taxes, general, special and/or SCOLPbetterment assessments and personal property taxes shall be prorated for those taxes which are due and payable as of the Closing Date. In the event that as of the Closing Date the actual tax bills for the tax year or years in question are not available and the amount of taxes to be prorated as aforesaid cannot be ascertained, then rates, millages and assessed valuation of the previous year, with known changes, shall be used; and after the Closing occurs and when the actual amount of taxes for the year or years in question shall be determinable, such taxes will be re-prorated between the parties to reflect the actual amount of such taxes.
5.1.3 Rentals and other payments (other than "percentage rent" and common area maintenance charges which are dealt with in SECTION 5.1.4 and SECTION 5.1.6) which are payable pursuant to Space Leases shall be prorated on a per diem basis as and when collected (subject to the provisions of Section 5.3). Buyer shall not be obligated to make any payment or give any credit to Seller on account of or by reason of any rental or other payments which are unpaid as of the Closing Date, but shall be required to turn over Seller's share of the same within ten (10) days if, as and when received by Buyer after the Closing; likewise, Seller agrees to turn over Buyer's share of any payments received from tenants applicable to any period from and after the date of Closing within ten (10) days of Seller's receipt of same; this provision shall survive Closing.
5.1.4 Percentage rent; if any, payable under each Space Lease shall be prorated with respect to the lease year thereunder in which Closing occurs on a per diem basis as and when collected. Any percentage rent collected by Buyer including any percentage rent which is delinquent and pertaining to (i) an entire lease year or accounting period of a tenant under a Space Lease which ends on a date prior to the Closing Date, or (ii) that portion of a lease year or accounting period of such tenant covering a period prior to the Closing Date where such lease year or accounting period begins prior to the Closing Date and ends thereafter shall in both cases be paid to Seller within ten (10) days of receipt by Buyer; and if any tenant's Space Lease provides for offsets or distributed deductions against percentage rent, then such offsets or deductions shall be prorated in the same manner as the percentage rent itself is prorated. This provision shall survive Closing.
5.1.5 Gas, water, electricity, heat, fuel, sewer and other utilities charges to which SECTION 5.
1.1 cannot be applied, and the governmental licenses, permits and inspection fees and operating expenses relating to the ContributorShopping Center (expressly excluding therefrom, however, such expenses relating to the initial construction of the Shopping Center), shall be prorated on a per diem basis.
5.1.6 Common area maintenance expenses and charges shall be prorated. The Owner Seller shall be responsible for all common area expenses and charges incurred prior to the Closing Date, and Buyer shall be responsible for the same accruing on and subsequent to the Closing Date. All common area expense payments made by each tenant and such charges paid under its Space Lease for the entire lease year during which the Closing occurs, including end-of-year adjustments, if any, shall be prorated between Seller and Buyer in the following manner: Not later than three (3) days prior to Closing, Seller shall deliver to Buyer, with regard to each Shopping Center tenant required to pay common area charges ("CAM Charges") under its lease, a detailed computation showing all CAM Charge expenses incurred by Seller for the period from the beginning of each such tenant's then current billing period for CAM Charges (e.g., calendar year, lease year, etc.) through the Closing Date, any CAM estimated payments or charges collected by Seller relating to such tenant (hereinafter "CAM Estimates"), and a ▇▇▇▇ for the tenant's pro rata share of CAM Charges (i.e., for CAM charges through the Closing Date net of any such CAM Estimates held by Seller), together with all invoices and other evidence documenting such CAM Charges in detail required by such tenant's lease. Buyer shall send any such bills to tenants promptly following Closing, in which event such tenant shall pay any amount shown due directly to Seller, and except as otherwise stated in Section 5.3.3 below Buyer shall have no responsibility to collect same. However, if any tenant rightfully refuses to pay such ▇▇▇▇ for CAM Charges due through the Closing Date, then Buyer shall resubmit such ▇▇▇▇ to any such tenant at the same time as Buyer next submits Buyer's own ▇▇▇▇ to any such tenant; and any payment thereafter made by any such tenant on account of CAM Charges shall belong to and be forwarded within ten (10) days of its receipt to Seller until Seller's ▇▇▇▇ is paid in full. Any CAM Estimates for any tenant shall be retained by Seller up to the amount of the pre-Closing CAM Charges payable by such tenant as evidenced by such bills and computations delivered by Seller at Closing, and Buyer shall receive a credit for any excess CAM Estimates collected by Seller.
5.1.7 All prepaid rentals, other prepaid payments(other than monthly real estate tax estimates or installments), security deposits paid pursuant to Space Leases, electric, gas, sewer and water deposits deposited with Seller by tenants, (including any accrued interest required under any Space Lease on all of the foregoing, unless Seller is entitled to retain the benefit thereof) under any Space Leases, license agreements or concession agreements relating to the Property, shall all belong to Buyer and all shall be assigned and delivered to Buyer at Closing, whereupon Seller shall be released from all liability with respect thereto. At Seller's option, Buyer shall receive a cash credit in the amount of all Security Deposits to be delivered to Buyer at Closing, and Seller may retain same.
5.1.8 Buyer shall not distribute be responsible for any charges, salaries, vacation pay or assign fringe benefits of employees of Seller prior to or following the Closing and none of the foregoing shall be prorated.
5.2 All prorations and payments to be made under the foregoing provisions shall be made on the basis of a written statement or statements delivered to Buyer by Seller and approved by Buyer. In the event any prorations, apportionments or computation shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same, provided that it makes written demand on the one from who it is entitled to such adjustment within two (2) years after the erroneous payment or computation was made; this provision shall survive Closing.
5.3 All accounts receivable flowing from the Property shall be treated as follows:
5.3.1 Buyer and Seller agree to treat all base or minimum rental payments received from a tenant as applicable to base or minimum rent which was owed by that tenant, if any, first for the month prior to the Contributor month in which Closing occurs and next for the month in which Closing occurs until the base or minimum rental amount due to Seller for such periods have been collected. In the event that there remains any unpaid base or minimum rent for a period prior to such periods, all payments of base or minimum rent received from such tenant shall be applied to sums owed Buyer before any part thereof shall be treated as belonging to Seller. In the event that there remains any unpaid tenant receivable other than base or minimum rent (including without limitation any tax, CAM, insurance or percentage rent payments) for any period prior to Closing, all payments received from any tenant in arrears (whether base or minimum rent or any other amount) shall be applied first to any such sums owed Buyer from such tenant before any part thereof shall be treated as belonging to Seller.
5.3.2 In the event that any tenant of Seller or Buyer shall hereafter apply or shall have heretofore applied for relief under the provisions of any bankruptcy or similar laws for the protection of debtors, the provisions of SECTION 5.3.1 shall not apply, and the Contributor parties shall not have the right to seek collectioncollection of their respective accounts, through litigation or otherwisetheir entitlements being determined by the Closing and the other provisions of this Agreement. Neither party shall have the right to enter into any transactions that purport to compromise claims belonging to the other, of unpaid Rents. Any eviction actions which are on-going as of without the other party's prior written consent.
5.3.3 If at the Closing Date and any tenants owe Seller any money (i.e. reimbursements to Seller for payment of liens or violations on the expense Property that were created by tenant(s) but that Seller is required hereunder to satisfy in order to effectuate the sale of the Property), Seller shall have the right, subsequent to the Closing, to collect such sums directly from the tenants, including bringing lawsuits against the tenants (at Seller's sole expense) for such collection (except that Seller is prohibited from bringing a lawsuit against any tenant(s) to collect rent arrears; instead Buyer agrees to use commercially reasonable efforts to collect such arrears on Seller's behalf); provided, however, Seller agrees that any such legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and action or collection shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property include any disturbance of the Owner and shall not be paid possession, use or occupancy of the tenants or any right to evict the tenants, whether pursuant to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions lease provisions or otherwise, and all amounts due for Buyer shall at Seller's expense join in any lawsuit and/or also participate or cooperate with Seller in its collection attempts. Buyer will (at Seller's expense) join in such a lawsuit or action only if the payment same does not include or require disturbance of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closingpossession of any tenants.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) 5.3.4 In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided Seller has granted rent concessions to any of tenants under space lease(s) that would extend beyond the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien Buyer shall receive credit for taxes not yet due and payablesame.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. 5.4 The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date provisions of this AgreementArticle 5 will survive Closing.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).
Appears in 1 contract
Sources: Agreement of Sale (Inland Western Retail Real Estate Trust Inc)
Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion All revenues arising from the operation of the Project Business earned or accrued up until midnight on the day prior to the Contribution Date (other than current taxes)Closing Date, and all special assessments levied on any portion of the Project prior to the Contribution Dateexpenses, shall be paid by Owner costs and liabilities, arising therefrom incurred, accrued or Contributor prior to the Contribution Date. Current payable up until such time including, without limitation, business, license, utility charges, real estate and personal property taxes and assessments levied against the Assets, property and equipment rentals, applicable copyright or other fees, sales and service charges, taxes, wages, salaries, vacation and sick pay shall be prorated at between Buyer and Seller in accordance with the Closing effective as principle that (i) Sellers shall receive all revenues, refunds and deposits of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and any Seller held by third parties (except to the extent that such items are included in the taxing authorities have issued statements thereforAssets), but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor responsible for all expenses, costs and liabilities incurred, payable or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part conduct of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) Business for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they and (ii) Buyer shall remain the property of the Owner and/or SCOLPreceive all revenues earned or accrued, and shall not be paid to responsible for all expenses, costs and liabilities incurred, payable or distributed allocable to the Contributor. The Owner shall not distribute conduct of the Business for the period commencing on and continuing after the Closing Date.
(b) Adjustments or assign prorations pursuant to this Section 2.5 will, insofar as feasible, be determined and paid on the Contributor and the Contributor shall not have the right Closing Date based upon Sellers’ calculation delivered to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of Buyer five (5) days prior to the Closing Date and approved by Buyer, with final settlement and payment by the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
appropriate party occurring no later than thirty (f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (9030) days after the Closing either SCOLP or Contributor discovers Date. The determination of the amount of adjustment under Section 2.5 shall be made in accordance with generally accepted accounting principles, consistently applied. Within thirty (30) days after the Closing Date, Buyer shall submit its determination of any inaccuracies or errors adjustments to Sellers for approval. If Sellers disagree with the determination made by Buyer of the adjustment, Seller shall give prompt written notice thereof, but in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party no event later than ten (10) days after receipt of such inaccuracy or error by written notice including determination, specifying in reasonable detail the nature and extent of the appropriate calculation. The parties such disagreement, and Buyer and Sellers shall attempt, have a period of ten (10) days in good faith, which to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1such disagreement. After the parties resolve any such issues or, in the event If the parties are unable to resolve issuessuch disagreement within such 10-day period, the matter shall be submitted to the New York City office of Deloitte & Touche, an independent certified public accounting firm, which accounting firm shall be directed to submit a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments resolution within thirty (30) days. Such accounting firm's determination shall be binding on Buyer and Sellers. Each party shall bear the fees and expenses of its own representatives, including its independent accountants, if any, and shall share equally the fees and expenses of any firm selected to resolve any disagreement between the parties. Within ten (10) business days following a final determination hereunder, the party obligated to make payment will make the payments determined to be due and owing in accordance with the terms of this Agreement, and the Section 2.5. This obligations of either party to pay any such amount the parties under this Section 2.5 shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)Closing.
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Adjustments and Prorations. 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
All taxes (a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current except income taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney real estate taxes and other professional feespersonal property taxes, the Acquisition Loancollected rents, charges for utilities, including water, sewer, and the fuel oil, and for utility services, maintenance services, maintenance and service contracts assumed by Buyer, all operating costs and expenses payable by Ownerexpenses, Holding Company or Contributor hereunder and all other income, costs, and charges of every kind which in any manner relate to the operation of the Premises (includingexcept insurance premiums) shall be prorated to the Date of Closing. For tenants whose rents are delinquent as of the Date of Closing, without limitationrents received after Closing shall be applied first to the month in which received, next to months including and after the costs and expenses specified in Section 19.1 Date of Closing (with a prorated payment to be paid by ContributorSeller for the month including the Date of Closing), and next to months preceding the Date of Closing (with payment to Seller). If the amount of taxes, assessments, or rents is not known on the Date of Closing, they shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit apportioned on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any basis of the occupants at amounts for the Project for any reasonpreceding year, with a reapportionment as soon as the new amounts can be ascertained. If such taxes and the same have not been fully satisfied assessment shall thereafter be reduced by Closingabatement, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discountsabatement, incentives or obligations. In all eventsless the reasonable cost of obtaining the same, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on apportioned between the Contribution Dateparties, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) provided that neither party shall be entitled obligated to a distribution from Owner in institute or prosecute proceedings for an amount equal to all abatement unless otherwise agreed. Buyer shall be responsible for the payment of any 5 assessments or notice of assessments made after the cash and cash equivalent assets held by Owner as date of the Contribution Date, after deduction execution hereof for any and all costspublic improvement, expenses and prorations payable by or chargeable against the provided Buyer takes ▇▇▇▇▇▇ Entities hereunder, unless any assessments are in arrears, in which event they shall be prorated. With respect to security and all other tenant deposits, if any, made by tenants on the Premises, Buyer shall receive credit therefor in the proration of rents. Any deposits on utilities paid by Seller shall be returned to Seller by the applicable utility provider. The Owner foregoing provisions of this section shall not distribute apply to any taxes, assessments, or other rightpayments which are directly payable by tenants under their leases or reimbursable by such tenants to the owner of the Premises, claimas landlord, cause of action or asset after under their leases. On the Effective Date of Closing, Seller shall deliver to Buyer all inventories of supplies on hand at the Premises owned by Seller, if any, at no additional cost to Buyer. All post-closing obligations in this Agreement.
6.3 If within ninety paragraph (90including without limitation obligations to reprorate, to refund payments of delinquent rent, and to refund shares of abatements) days after shall survive the Date of Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant for a period of three months, except all post closing obligations relating to Sections 6.1 and/or 6.2, such party tax bills shall notify the other party survive for a period of such inaccuracy or error by written notice including reasonable detail three (3) months from Buyer's receipt of the appropriate calculationtax ▇▇▇▇. On the Date of Closing, Seller shall execute in favor of Buyer an assignment of leases, tenancies, and security and other tenant deposits. The parties assignment shall attempthave attached thereto as an exhibit (and certified as accurate, in good faithas of the Date of Closing) a list of all tenants at the Premises, to resolve any issues with respect to delinquent revenue showing apartment number, beginning lease date, lease ending date, monthly rent, whether rent is current, and the prorations amount of any security deposit made. Buyer shall thereupon assume, take over, and adjustments done at Closing pursuant to Section 6.1. After perform all leases and tenancies affecting the parties resolve any such issues orPremises, in the event the parties are unable to resolve issues, a final judgment has been rendered and Buyer shall execute an acceptance of assignment with respect to such matter without timely appeal leases, tenancies, security and other deposits. Buyer and Seller, or after all appeals timely made are fully resolvedSeller's property manager, SCOLP shall execute, for delivery to tenants, a form of notice of assignment. On or before the last day of the Review Period, Buyer may designate in writing to Seller maintenance and Contributor service contracts (which term shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall include laundry leases) to be in accordance with the terms of this Agreementterminated, and Seller shall terminate all such contracts so designated, at no cost to Buyer, as of the obligations Date of either party Closing, and Buyer shall not assume such contracts. On the Date of Closing, Seller shall execute in favor of Buyer assignments of all maintenance and service contracts that have not been so designated by Buyer for termination, and Buyer shall thereupon assume, take over, and perform all such maintenance and service contracts, and Buyer shall execute acceptance of assignment with respect to pay any such amount shall survive the Contribution Date. Prorations maintenance and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d)service contracts.
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Sources: Purchase and Sale Agreement (Hancock John Properties LTD Partnership)