Apportionments. The terms and provisions of this Section 2.7 shall apply with respect to each of the Real Properties set forth on Schedule 2.7 (each, a “Golf Course Property” and collectively, the “Golf Course Properties”). (a) The prorations and apportionments (the “Apportionments”) hereunder for each Golf Course Property shall be jointly prepared by OpCo and REIT on or before the Effective Date on the basis of actual and estimated amounts as provided in Section 2.7(b) of this Agreement. In the event any Apportionments made under this Agreement shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same during the ninety (90) day period after the Effective Date. To the extent it shall be determined that a party was initially allocated any amount of the Apportionments in excess of the amount to which it is entitled hereunder, such party shall remit such excess amount to the other party within ten (10) days after such determination. The Apportionments, as adjusted, if applicable, during said ninety (90) day period shall be conclusive and binding on OpCo and REIT. (b) The following shall be apportioned as of the close of business on the day immediately preceding the Effective Date: (i) real property taxes, sewer taxes and rents, vault taxes and any other governmental taxes and charges levied or assessed against the applicable Golf Course Property or the use thereof, on the basis of the respective fiscal years for which each is assessed; (ii) water rates and charges, unless the direct responsibility of any tenant of the applicable Golf Course Property; (iii) annual license, permit and inspection fees, if any; (iv) fuel (as estimated by OpCo’s supplier, at OpCo’s cost, together with sales tax) and steam, gas, electricity charges and all other utilities which are supplied to the applicable Golf Course Property (except to the extent the same are the direct responsibility of any tenant of the applicable Golf Course Property); (v) rents and all other charges (including reimbursement payments) payable under any lease with a tenant of the applicable Golf Course Property as and when collected; provided, however, that if any rents under any leases shall be accrued and unpaid at the Effective Date, the rents collected by REIT on or after the Effective Date shall first be applied to all rents due and payable for the calendar month in which the Effective Date occurs; next to all rent due OpCo and payable for the month immediately preceding the calendar month in which the Effective Date occurs; next to all rents due and payable at the time of such collection with respect to the period after the calendar month in which the Effective Date occurs; and the balance shall be applied to the extent of delinquent rents for the period prior to the month immediately preceding the calendar month in which the Effective Date occurs. Any sums received by REIT to which OpCo is entitled shall be held in trust for OpCo on account of said past due rents payable to OpCo, and REIT shall remit any such sums to OpCo within ten (10) days after receipt thereof. OpCo agrees that if OpCo receives any amounts after the Effective Date which are attributable, in whole or in part, to any period after the Effective Date, OpCo shall remit to REIT that portion of the monies so received by OpCo to which REIT is entitled within ten (10) days after receipt thereof; (vi) all charges and payments under any service contracts in effect with respect to the applicable Golf Course Property; and (vii) all other income from and expense relating to the applicable Golf Course Property of every type and nature as is customary with the closing of a commercial property transaction in the city and state in which the applicable Golf Course Property is located. (c) If any refund of real property taxes or assessments, water rates and charges or sewer taxes and rents shall be made after the Effective Date and is received by REIT or OpCo, the same shall be held in trust by the receiving party, and shall first be applied to the unreimbursed costs incurred in obtaining the same, and the balance, if any, shall be paid to OpCo (for the period prior to the Effective Date) and to REIT (for the period commencing with the Effective Date).
Appears in 2 contracts
Sources: Separation Agreement (CAESARS ENTERTAINMENT Corp), Separation Agreement (Vici Properties Inc.)
Apportionments. The terms and provisions of this Section 2.7 shall apply with (a) With respect to each of the Real Properties set forth on Schedule 2.7 (each, a “Golf Course Property” and collectively, the “Golf Course Properties”).
(a) The prorations and apportionments (the “Apportionments”) hereunder for each Golf Course Property following shall be jointly prepared by OpCo prorated between the applicable Property Owner as constituted immediately prior to the Closing, and REIT the applicable Property Owner as constituted immediately following the Closing, as of 11:59 p.m. on or before the Effective day preceding the Closing Date (on the basis of the actual and estimated amounts as provided in Section 2.7(b) number of this Agreement. In days elapsed over the event any Apportionments made under this Agreement shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same during the ninety (90) day period after the Effective Date. To the extent it shall be determined that a party was initially allocated any amount of the Apportionments in excess of the amount to which it is entitled hereunder, such party shall remit such excess amount to the other party within ten (10) days after such determination. The Apportionments, as adjusted, if applicable, during said ninety (90) day period shall be conclusive and binding on OpCo and REIT.
(b) The following shall be apportioned as of the close of business on the day immediately preceding the Effective Date:applicable period):
(i) Fixed rents, additional rents and all other sums and credits due or payable under the applicable Leases and any other items of income, as and when collected;
(ii) All real property estate taxes, water charges, sewer taxes and rents, vault taxes charges and any other governmental taxes assessments on the Property on the basis of the fiscal year for which assessed (except to the extent required to be paid by tenants in good standing pursuant to Leases);
(iii) All operating expenses (except to the extent required to be paid by tenants in good standing pursuant to Leases);
(iv) Any prepaid items, including, without limitation, fees for licenses and charges levied or assessed against the applicable Golf Course Property or the use thereofannual permit and inspection fees;
(v) Utilities, including, without limitation, telephone, steam, electricity and gas, on the basis of the respective fiscal years for which each is assessed;
(ii) water rates and charges, unless the direct responsibility of any tenant of the applicable Golf Course Property;
(iii) annual license, permit and inspection fees, if any;
(iv) fuel (as estimated by OpCo’s supplier, at OpCo’s cost, together with sales tax) and steam, gas, electricity charges and all other utilities which are supplied to the applicable Golf Course Property most recently issued bills therefor (except to the extent the same are the direct responsibility of any tenant of the applicable Golf Course Propertyrequired to be paid by tenants pursuant to Leases);
(v) rents and all other charges (including reimbursement payments) payable under any lease with a tenant of the applicable Golf Course Property as and when collected; provided, however, that if any rents under any leases shall be accrued and unpaid at the Effective Date, the rents collected by REIT on or after the Effective Date shall first be applied to all rents due and payable for the calendar month in which the Effective Date occurs; next to all rent due OpCo and payable for the month immediately preceding the calendar month in which the Effective Date occurs; next to all rents due and payable at the time of such collection with respect to the period after the calendar month in which the Effective Date occurs; and the balance shall be applied to the extent of delinquent rents for the period prior to the month immediately preceding the calendar month in which the Effective Date occurs. Any sums received by REIT to which OpCo is entitled shall be held in trust for OpCo on account of said past due rents payable to OpCo, and REIT shall remit any such sums to OpCo within ten (10) days after receipt thereof. OpCo agrees that if OpCo receives any amounts after the Effective Date which are attributable, in whole or in part, to any period after the Effective Date, OpCo shall remit to REIT that portion of the monies so received by OpCo to which REIT is entitled within ten (10) days after receipt thereof;
(vi) all charges Deposits with telephone and payments other utility companies;
(vii) Payments of principal and interest and other costs payable under any service contracts in effect with respect to the applicable Golf Course PropertyCurrent Loan Documents, New Parkway Plaza Loan Documents and New Stone Hedge Loan Documents, as applicable; and
(viiviii) all Such other income from items as are customarily apportioned between sellers and expense relating purchasers of real properties (and interests therein) of a type similar to the applicable Golf Course Property of every type Properties and nature as is customary with the closing of a commercial property transaction located in the city and state Commonwealth in which the applicable Golf Course each such Property is located.
(b) If, on the Closing Date, any items of additional rent or percentage rent under the Leases or other income or expense of the Properties shall not have been ascertained, then such items shall be adjusted retroactively as and when the same are ascertained.
(c) If, with respect to any Property, the Closing shall occur before the applicable real estate tax rate is fixed, the apportionment of real estate taxes for such Property at the Closing shall be based upon the tax rate for the next preceding year applied to the latest assessed valuation. Promptly after the new tax rate or assessment is fixed, the apportionment of taxes or assessments shall be recomputed and any discrepancy resulting from such recomputation and any errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party reimbursed.
(d) All apportionments made under this Agreement shall be calculated (1) as between the Property Owners, as constituted prior to the applicable Closing as the prior owners of the Properties, and such Property Owners, as constituted following the applicable Closing as the new owners of the Properties, and then (2) the applicable Allotted Consideration shall be adjusted at the applicable Closing such that Cedar and Homburg shall share in the credits and debits of the Property Owners in proportion to their respective interests in such Property Owners immediately following the Closing.
(e) If any refund tenant at a Property is in arrears in the payment of real property taxes or assessmentsrent on the Closing Date, water rates any and charges or sewer taxes and all rents received from such tenant after the Closing shall be made applied in the following order of priority: (i) first to the month in which the Closing occurred; (ii) then to any month or months following the month in which the Closing occurred; and (iii) then to the months preceding the month in which the Closing occurred. If rents or any portion thereof received after the Effective Date and is received Closing are payable to the other party by REIT or OpCoreason of this allocation, the same shall be held in trust by the receiving partyappropriate sum, less a proportionate share of any reasonable attorneys’ fees, costs and shall first be applied to the unreimbursed costs incurred in obtaining the same, and the balance, if anyexpenses of collection thereof, shall be promptly paid to OpCo the other party.
(f) Notwithstanding anything to the contrary contained in this Agreement, with respect to the Existing Cedar Properties only, Cedar shall remain liable for actual damages (including out-of-pocket expenses actually incurred by the period Property Owners) resulting from (w) uninsured third party tort claims arising and accruing prior to the Effective applicable Closing Date and which are both unrelated to the environmental condition of any Existing Cedar Property or any physical condition known by or disclosed to Homburg or any Homburg Representatives and based solely on the actions or omissions of any Existing Cedar Property Owner prior to the applicable Closing Date (the parties acknowledge that Cedar shall not be responsible hereunder for third party tort claims that are uninsured by reason of the applicable insurance deductible), (x) any breach by any Existing Property Owner of its obligations under any of the Service Contracts and Leases arising prior to the applicable Closing Date unless Homburg shall have received an estoppel certificate with respect to such Service Contract or Lease prior to applicable Closing or (A) such breach shall have been disclosed to or known by Homburg prior to the applicable Closing Date or (B) the applicable Allotted Consideration shall have been adjusted to reflect such monetary obligation or breach, (y) any tax liability of any Existing Cedar Property Owner allocable to periods prior to the applicable Closing Date, and (z) the completion of certain tenant improvements required to be performed by the lessor under certain Leases, all as more particularly identified on Schedule 4 attached hereto (the “Tenant Improvements”), as and to REIT (for the period commencing extent the same have not been completed prior to the applicable Closing Date. Homburg acknowledges and agrees that its sole and exclusive remedy against Cedar in connection with the Effective Dateforegoing responsibilities shall be either an action for specific performance or a claim for actual damages (excluding special, consequential and punitive damages), Homburg hereby waiving any other right or remedy it may otherwise have at law or equity. The provisions of this Section 17 notwithstanding, nothing contained herein shall limit or in any way be deemed to modify the “as is, where is” nature of the Transactions as more particularly set forth in Section 11(d) of this Agreement and Homburg hereby confirms its agreement to waive any right it may have at law or in equity, including, without limitation, the right to seek damages or contribution from Cedar in connection with the physical (including, without limitation, environmental) condition of the Properties (except in connection with any breach of applicable representations and warranties of Cedar contained in Section 11(a) in accordance with the terms and conditions of this Agreement). The provisions of this Section 17 shall survive the Closings.
Appears in 2 contracts
Sources: Purchase Agreement (Cedar Shopping Centers Inc), Purchase Agreement (Cedar Shopping Centers Inc)
Apportionments. The terms and provisions of this Section 2.7 shall apply with respect to each of the Real Properties set forth on Schedule 2.7 (each, a “Golf Course Property” and collectively, the “Golf Course Properties”).
(a) The prorations Real Property Taxes, utility charges, rents, income from leases, easements, licenses, permits, agreements, and apportionments privileges, if any, and any other revenues and expenses pertaining to the Credit Card Assets (other than revenue realized in respect of the “Apportionments”Account Assets and the Securitization Assets and other than the costs of the Consumable Inventory) hereunder for each Golf Course Property shall be jointly prepared by OpCo prorated between Buyers and REIT on Sellers as of the Cut-Off Time (with Sellers being responsible for such expenses and entitled to such revenues through and including the Cut-Off Time), regardless of the date assessed, paid or before the Effective Date payable. Any special Taxes or assessments on the basis Credit Card Assets relating to taxable periods (or portions thereof) ending prior to the Cut-Off Time shall be paid by Sellers. With respect to any payments made by either Party to any taxing authority, or by any taxing authority to any Party, whether before or after Cut-Off Time, appropriate remittances shall be made promptly between the Parties to assure that such items are apportioned as of actual the Cut-Off Time in accordance with this Section 2.6. Each of GE Capital and estimated amounts the Company shall have the right, for a period of one (1) year after Closing, to audit (at its own expense) the books and records of the other party which pertain to expenses and revenues to be apportioned hereunder. Except as otherwise provided in Section 2.7(b) 7.5, Buyers shall not be obligated to pay any of this Agreement. In Sellers' Taxes or Income Taxes attributable to the event any Apportionments made under this Agreement shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same during the ninety (90) day period after the Effective Datesale. To the extent it shall be determined that a party was initially allocated any amount of the Apportionments in excess of the amount to which it is entitled hereundernecessary to pay applicable Taxes or Income Taxes before deeds can be recorded, Sellers will promptly pay such party Taxes or Income Taxes, except that Sellers shall remit such excess amount not be responsible for any Taxes for which Buyer is responsible pursuant to the other party within ten (10) days after such determination. The Apportionments, as adjusted, if applicable, during said ninety (90) day period shall be conclusive and binding on OpCo and REITSection 7.5.
(b) The following At Closing, Sellers shall be apportioned prepare and deliver to GE Capital, and GE Capital shall sign and deliver to Sellers for mailing, a joint letter in the form attached hereto as of the close of business on the day immediately preceding the Effective Date:
(i) real property taxesExhibit K, sewer taxes and rents, vault taxes and any other governmental taxes and charges levied or assessed against the applicable Golf Course Property or the use thereof, on the basis of the respective fiscal years for which each is assessed;
(ii) water rates and charges, unless the direct responsibility of any tenant of the applicable Golf Course Property;
(iii) annual license, permit and inspection fees, if any;
(iv) fuel (requesting all Persons as estimated by OpCo’s supplier, at OpCo’s cost, together with sales tax) and steamidentified in said letter providing electric, gas, electricity charges and all water, telephone or other utilities which are supplied utility services to the applicable Golf Course Real Property (except or any part thereof, to the extent the same are the direct responsibility of any tenant of the applicable Golf Course Property);
(v) rents transfer such services and all other charges (including reimbursement payments) payable under any lease with a tenant of the applicable Golf Course Property as and when collected; providedbilling therefor to GE Capital, however, that if any rents under any leases shall be accrued and unpaid effective at the Effective Date, the rents collected by REIT on or after the Effective Date shall first be applied to all rents due and payable for the calendar month in which the Effective Date occurs; next to all rent due OpCo and payable for the month immediately preceding the calendar month in which the Effective Date occurs; next to all rents due and payable at the time of such collection with respect to the period after the calendar month in which the Effective Date occurs; and the balance shall be applied to the extent of delinquent rents for the period prior to the month immediately preceding the calendar month in which the Effective Date occurs. Any sums received by REIT to which OpCo is entitled shall be held in trust for OpCo on account of said past due rents payable to OpCoClosing, and REIT to issue a final ▇▇▇▇ to Sellers for such utility service. Buyers shall remit refund to Sellers any such sums payments previously made by Sellers for utility services furnished or to OpCo within ten (10) days be furnished after receipt thereof. OpCo agrees that if OpCo receives any amounts after the Effective Date which are attributableClosing, in whole or in part, to any period after the Effective Date, OpCo shall remit to REIT that portion of the monies so received by OpCo to which REIT is entitled within ten (10) days after receipt thereof;
(vi) all charges and payments under any service contracts in effect with respect to the applicable Golf Course Property; and
(vii) all other income from and expense relating to the applicable Golf Course Property of every type and nature as is customary with the closing of a commercial property transaction in the city and state in which the applicable Golf Course Property is locatedthan deposits.
(c) If any refund of real property taxes or assessments, water rates and charges or sewer taxes and rents shall be made after the Effective Date and is received by REIT or OpCo, the same shall be held in trust by the receiving party, and shall first be applied to the unreimbursed costs incurred in obtaining the same, and the balance, if any, shall be paid to OpCo (for the period prior to the Effective Date) and to REIT (for the period commencing with the Effective Date).
Appears in 1 contract
Sources: Credit Card Asset Purchase and Sale Agreement (Penney J C Co Inc)
Apportionments. The terms and provisions (a) At each Closing, the following items shall, with respect to the Properties being transferred, be apportioned between THCI (which, for purposes of this Section 2.7 2.07(a), shall apply with respect to each of the Real Properties set forth on Schedule 2.7 (eachinclude THCI and, a “Golf Course Property” and collectivelyas applicable, the “Golf Course Properties”).
(aTHCI Subsidiaries) The prorations and apportionments (the “Apportionments”) hereunder for each Golf Course Property Acquirors on a per diem basis, so that THCI shall be jointly prepared by OpCo responsible for those items of expense and REIT credited with those items of income that are attributable to the period prior to the Applicable Closing Date and the Acquirors shall be responsible for those items of expense and credited with those items of income that are attributable to the period on or before after the Effective Date on the basis of actual Applicable Closing Date: rents (including without limitation ground lease rent (if applicable), base rent, common area maintenance reimbursements, marketing fund contributions, operating expense and estimated amounts as provided in Section 2.7(btax reimbursements, percentage rent and other additional rent) of this Agreement. In the event any Apportionments made under this Agreement shall prove (collectively "RENTS"); prepaid and accrued expenses (including, without limitation, interest, ground rent, utility charges, water and sewer charges (unless such payment is to be incorrect made directly by any tenant), fees for any reasonlicenses and permits, then either party shall be entitled to an adjustment to correct the same during the ninety (90) day period after the Effective Date. To the extent it shall be determined that a party was initially allocated any amount of the Apportionments in excess of the amount to which it is entitled hereunderfuel, such party shall remit such excess amount to the other party within ten (10) days after such determination. The Apportionmentssteam, as adjusted, if applicable, during said ninety (90) day period shall be conclusive gas and binding on OpCo and REIT.
(b) The following shall be apportioned as of the close of business on the day immediately preceding the Effective Date:
(i) real property taxes, sewer taxes and rents, vault taxes and any other governmental taxes and charges levied or assessed against the applicable Golf Course Property or the use thereof, on the basis of the respective fiscal years for which each is assessed;
(ii) water rates and electricity charges, unless the direct responsibility of any tenant of the applicable Golf Course Property;
(iii) annual license, permit and inspection fees, if any;payments under reciprocal easement agreements and payments to merchants associations and/or promotional funds maintained by THCI, and obligations under the Contracts assumed by the Acquirors; and real and personal ad valorem and other taxes and assessments ("AD VALOREM TAXES") against such Property; provided that:
(i) If the Ad Valorem Taxes for the tax year in which the Applicable Closing occurs are not known or cannot reasonably be estimated, they shall be adjusted based on an estimate obtained using the then current assessed value of such Property as of the Applicable Closing Date and the tax rate and multiplier reflected by the most recent Ad Valorem Taxes due. After the Ad Valorem Taxes for the year in which the Applicable Closing occurs are known, adjustments shall be made between the parties.
(ii) THCI shall have the right to control all tax certiorari and tax reduction proceedings relating to Properties conveyed (or the Properties associated with the Partnership Interests transferred) for tax years prior to and including the tax year in which the Applicable Closing Date occurs and shall keep the Acquirors informed with respect thereto. Any tax refund or credit obtained by THCI (net of any costs of obtaining such refund) attributable (A) to the period prior to the tax year in which the Applicable Closing Date occurs shall be paid, first, to any tenants of the Properties entitled thereto and, second, to THCI and (B) to the tax year in which the Applicable Closing Date occurs shall be apportioned between THCI and the Acquirors, with the portion allocable to THCI to be applied as provided in clause (A) and the balance paid to the Acquirors, subject, however, to the rights of tenants of the Properties entitled thereto. With respect to any proceeding in respect of a tax year in which the Applicable Closing Date occurs, THCI shall coordinate its efforts with the Acquirors, shall keep the Acquirors informed with respect thereto and shall not settle the same without the consent of the Acquirors, which consent shall not be unreasonably withheld or delayed. From and after the expiration of the tax year in which the Applicable Closing Date occurs, the Acquirors shall have the right to control all tax certiorari and tax reduction proceedings relating to Properties conveyed for tax years commencing with the tax year following the tax year in which the Applicable Closing Date occurs.
(iii) The Acquirors shall take all steps necessary to effectuate the transfer of all utilities to an Acquiror's name as of the Applicable Closing Date and, where necessary, the Acquirors shall post deposits with the utility companies. THCI shall pay all utility charges accruing prior to the Applicable Closing Date and all utilities thereafter shall be paid for by the Acquirors. THCI shall be entitled to recover any and all deposits held by utility companies as of the Applicable Closing Date. To the extent that the Acquirors fail to make, where required, deposits to any such utility companies (or to make any deposits with other service providers) so as to prevent the timely release of THCI's deposits by the utility companies (or such other service providers) on the Applicable Closing Date, the aggregate amount of such deposits shall be credited to THCI. In such event, THCI's deposits shall be assigned to an Acquiror, which shall have the right to have the deposits released to it upon satisfaction of the conditions imposed by the utility companies (or such other service providers).
(iv) fuel (as estimated by OpCo’s supplierTHCI shall, at OpCo’s costthe Applicable Closing, together with sales tax) and steam, gas, electricity charges and all other utilities which are supplied credit the Acquirors for any Rents paid to THCI by the applicable Golf Course Property (except to the extent the same are the direct responsibility of any tenant tenants of the applicable Golf Course Property);
(v) rents and all other charges (including reimbursement payments) payable under any lease with a tenant of the applicable Golf Course Property as and when collected; provided, however, that if any rents under any leases shall be accrued and unpaid at the Effective Date, the rents collected by REIT on or after the Effective Date shall first be applied to all rents due and payable for the calendar month in which the Effective Date occurs; next to all rent due OpCo and payable for the month immediately preceding the calendar month in which the Effective Date occurs; next to all rents due and payable at the time of such collection with respect to the period beginning on the Applicable Closing Date. No proration shall be made for Rents from tenants that are delinquent as of the Applicable Closing Date (the "TENANT DELINQUENT RENTS"). All Tenant Delinquent Rents collected on or after the calendar month in which the Effective Applicable Closing Date occurs; and the balance shall be applied allocated, first, to the extent of delinquent rents for then current month, next, to any other delinquency after the Applicable Closing Date, and, finally, to any other delinquency prior to the Applicable Closing Date. Any Tenant Delinquent Rents collected by the Acquirors after the Applicable Closing which are allocable to the period prior to the month immediately preceding the calendar month in which the Effective Applicable Closing Date occurs. Any sums received by REIT to which OpCo is entitled shall be held in trust and forthwith paid by the Acquirors to THCI subject to and in accordance with the foregoing allocation provision. The Acquirors shall use their commercially reasonable efforts to collect all Tenant Delinquent Rents (other than the Tenant Delinquent Rents described in clause (e) of the definition of Excluded Property Assets), but in no event shall the Acquirors be obligated to commence legal proceedings for OpCo collection against any tenant. All rights to pursue collection of Tenant Delinquent Rents (other than the Tenant Delinquent Rents described in clause (e) of the definition of Excluded Property Assets) shall vest solely in the Acquirors. Any Rents paid to THCI by the tenants of the applicable Property on or after the Applicable Closing Date, other than Tenant Delinquent Rents described in clause (e) of the definition of Excluded Property Assets, shall be held in trust and forthwith paid by THCI to the Acquirors (subject, however, to the allocation of the same as set forth above). At the Applicable Closing, THCI shall deliver to the Acquirors a written certification identifying any Tenant Delinquent Rents.
(v) All percentage rents for tenants' annual sales reporting periods (as defined in the tenant leases) ending prior to the Applicable Closing Date, including tenant leases terminated before the Applicable Closing, shall belong solely to THCI. Any percentage rent paid with respect to any tenant's annual sales reporting period that is in effect on the Applicable Closing Date (the "CURRENT REPORTING PERIOD") shall be adjusted by and between THCI and the Acquirors as hereinafter described. Percentage rent earned during each tenant's Current Reporting Period shall be prorated on the basis of the number of days in such annual sales reporting period that the Applicable Property was owned by THCI or the Acquirors and payments of THCI's share shall be made by the Acquirors following the end of the applicable sales reporting period, provided that (i) there shall be deducted from the amounts payable to THCI hereunder with respect to any tenant any sums previously collected by THCI from such tenant on account of said past due rents payable percentage rent for the Current Reporting Period and (ii) if it shall be determined by the parties that THCI has collected more than its share of the percentage rent from such tenant, THCI shall immediately pay over the surplus to OpCo, and REIT shall remit any such sums to OpCo within ten (10) days after receipt thereofthe Acquirors. OpCo agrees that if OpCo receives any amounts after After the Effective Date which are attributable, in whole or in part, to any period after the Effective Applicable Closing Date, OpCo the Acquirors shall remit deliver to REIT that portion THCI monthly status reports detailing collections of percentage rents for the monies so received by OpCo to which REIT is entitled within ten (10) days after receipt thereof;Current Reporting Period.
(vi) All security deposits (including any interest thereon to the extent payable to the applicable tenants) not theretofore properly applied to obligations under the applicable leases shall be delivered by THCI to the Acquirors at the Applicable Closing, or, in the alternative, THCI may elect to give the Acquirors a credit in the amount of such security deposits. THCI shall either assign its rights under all letters of credit security deposits to the Acquirors or, if any such letters of credit are not assignable, shall cooperate with the Acquirors in arranging for the transfer thereof to the Acquirors, and, pending such transfer, THCI shall act as the Acquirors' agent in presenting any draws under, and in otherwise administering such letters of credit.
(vii) [INTENTIONALLY OMITTED]
(viii) THCI shall receive a credit for all reserves, deposits and escrows for taxes, insurance, interest, capital expenditures, tenant improvements, claims and any other reserves, deposits and escrows on deposit with any lender with respect to any indebtedness assumed by the Acquirors (or to which the Acquirors take subject) or any other Person other than any of the foregoing that is held (A) by insurers or (B) by Teachers as security for capital improvement obligations that remain unsatisfied as of the Applicable Closing Date.
(ix) THCI's insurance policies on the applicable Property shall not be assumed by the Acquirors, but shall be canceled effective as of the Applicable Closing Date. The amount of the refunds payable to THCI in respect of such early cancellation of insurance policies on the applicable Property shall be the property of THCI. The Acquirors shall purchase and place their own insurance on the applicable Property as of Applicable Closing Date.
(x) Common area maintenance reimbursements and charges and payments payable under any service contracts in effect leases at the applicable Property with respect to the 1998 calendar year shall initially be apportioned between the parties at the Applicable Closing based on the 1998 budgeted amounts of common area maintenance reimbursement and other charges for such Property and on the number of days THCI owned the applicable Golf Course Property; andProperty during the 1998 calendar year. THCI shall prepare a statement showing the amounts collected from the tenants in respect of common area maintenance reimbursements and charges for the portion of the 1998 calendar year prior to the Applicable Closing Date, and shall furnish a copy of such statement to the Acquirors. To the extent the amount owing to THCI attributable to the portion of the 1998 calendar year prior to the Applicable Closing Date determined by means of such estimate shall be more than the amounts collected by THCI in respect of such 1998 calendar year common area maintenance reimbursements and charges, then the difference will be paid by the Acquirors to THCI at the Applicable Closing. To the extent the amount owing to THCI attributable to the portion of the 1998 calendar year through the Applicable Closing Date determined by means of such estimate shall be less than the amounts collected by THCI in respect of such 1998 calendar year common area maintenance reimbursements and charges, then the difference will be paid by THCI to the Acquirors at the Applicable Closing. A final recalculation of the actual amounts payable for common area maintenance reimbursements and other charges shall be made within 120 days after the end of the 1998 calendar year.
(viixi) The Acquirors shall receive a credit for unpaid tenant allowances (which shall include tenant improvement allowances, landlord contributions, lease takeover obligations and other payments to or for the benefit of tenants and periods of free rent after the Applicable Closing Date) and lease commissions applicable to all other income from leases at the Property that were executed and expense relating delivered prior to the applicable Golf Course date of this Agreement (other than in connection with renewals or extensions, exercised or executed after the date of this Agreement, of leases executed on or prior to the date of this Agreement), the Acquirors shall assume all responsibility for the payment of such tenant allowances and lease commissions and all of the same shall constitute Assumed Property Liabilities.
(xii) Amounts subject to redemption under gift certificates issued by THCI prior to the Applicable Closing Date and still outstanding as of every type the Applicable Closing shall be described in a schedule prepared by THCI and nature as is customary with delivered to the closing Acquirors at the Applicable Closing. At the Applicable Closing, the aggregate amount of a commercial property transaction such issued and outstanding scheduled gift certificates shall be deposited in the city bank accounts maintained by THCI and state to be transferred over to the Acquirors at the Applicable Closing, to fund the redemption of such scheduled gift certificates. The Acquirors shall assume all liability for the redemption of such scheduled gift certificates.
(xiii) To the extent that the interest being transferred in which a Property at any Applicable Closing is an interest in a Partnership, the amounts to be apportioned hereunder shall be adjusted to reflect the amounts that THCI would receive or pay if such items of income or expense were paid by the applicable Golf Course Property is locatedowner of the Property.
(b) At each Applicable Closing, the net credit to THCI or the Acquirors, as applicable, resulting from the apportionments made pursuant to subsection (a) of this Section 2.07 for all Properties being transferred on such Applicable Closing Date shall be paid to THCI or the Acquirors, as applicable, by wire transfer of immediately available funds to a bank account or accounts designated by THCI or the Acquirors, such notice to be delivered not later than the second Business Day prior to such Applicable Closing Date.
(c) If In the event that any refund amounts to be prorated pursuant to Section 2.07(a) have not been finally determined on the Applicable Closing Date, a mutually satisfactory estimate of real property taxes such amounts made on the basis of THCI's records or assessments, water rates and charges or sewer taxes and rents public records shall be made after used as a basis for settlement at the Effective Date and is received by REIT or OpCo, the same shall be held in trust by the receiving party, and shall first be applied to the unreimbursed costs incurred in obtaining the sameApplicable Closing, and the balanceamounts finally determined will be prorated as of the Applicable Closing Date and appropriate settlement made as soon as practicable after such final determination, but in no event later than 120 days after the later of (i) the last day in the calendar year in which the Applicable Closing Date occurs or (ii) the last day of the Current Reporting Period that is the last Current Reporting Period to expire.
(d) At the Initial Closing, the current assets and current liabilities of the Management Company shall be estimated in good faith by THCI, and THCI shall pay to the Acquirors the excess, if any, of such current liabilities over such current assets, or the Acquirors shall pay to THCI the excess, if any, of such current assets over such current liabilities. To the extent not known on the Initial Closing Date, the current assets and current liabilities shall be paid estimated on the best available information at the time and appropriate settlement made from time to OpCo (for time as the period prior to the Effective Date) and to REIT (for the period commencing with the Effective Date)same are liquidated.
Appears in 1 contract
Apportionments. The terms and provisions of this Section 2.7 shall apply with respect to each of the Real Properties set forth on Schedule 2.7 (each, a “Golf Course Property” and collectively, the “Golf Course Properties”).
(a) The prorations and apportionments (the “Apportionments”) hereunder for each Golf Course Property shall be jointly prepared by OpCo and REIT on or before the Effective Date on the basis of actual and estimated amounts as provided in Section 2.7(b) of this Agreement. In the event any Apportionments made under this Agreement shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same during the ninety (90) day period after the Effective Date. To the extent it shall be determined that a party was initially allocated any amount of the Apportionments in excess of the amount to which it is entitled hereunder, such party shall remit such excess amount to the other party within ten (10) days after such determination. The Apportionments, as adjusted, if applicable, during said ninety (90) day period shall be conclusive and binding on OpCo and REIT.
(b) The following shall be apportioned between the Seller and the Purchaser at the Closing as of the close 11:59 p.m. of business on the day immediately preceding the Effective Closing Date (the "Adjustment Date:"):
(ia) fixed or base rents ("Rents") which have been prepaid, security deposits referred to in Section 8(e), Rents for the month in which the Closing occurs and Additional Rents and other amounts paid by tenants applicable to periods which expire after the Closing Date, which have been received by Seller;
(b) real property estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occurs), water charges, sewer taxes and rents, vault taxes and any other governmental taxes rents and charges levied or assessed against the applicable Golf Course Property or the use thereofand vault charges, if any, on the basis of the respective fiscal years (or applicable billing period if other than a fiscal year), respectively, for which each is same have been assessed;
(iic) water rates and chargesvalue of prepaid fuel belonging to the Seller stored on the Property, unless at the direct responsibility Seller's cost, including any taxes, on the basis of any tenant of a statement from the applicable Golf Course PropertySeller's suppliers;
(iiid) charges and payments under Contracts that are being assigned to the Purchaser pursuant to the terms of this Agreement and listed on Schedule 3 hereto or permitted renewals or replacements thereof;
(e) any prepaid items, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and annual license, permit and inspection fees;
(f) utilities, to the extent required by Section 3.4;
(g) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;
(h) personal property taxes, if any, on the basis of the fiscal year for which assessed;
(ivi) fuel (as estimated by OpCo’s supplier, at OpCo’s cost, together with sales tax) and steam, gas, electricity charges and all other utilities which are supplied to revenues from the applicable Golf Course Property (except to the extent the same are the direct responsibility of any tenant operation of the applicable Golf Course PropertyProperty other than Rents and Additional Rents (including, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues);
(vj) rents and all other charges (including reimbursement payments) payable under any lease with a tenant of the applicable Golf Course Property New Lease Expenses as and when collected; provided, however, that if any rents under any leases shall be accrued and unpaid at the Effective Date, the rents collected by REIT on or after the Effective Date shall first be applied to all rents due and payable for the calendar month provided in which the Effective Date occurs; next to all rent due OpCo and payable for the month immediately preceding the calendar month in which the Effective Date occurs; next to all rents due and payable at the time of such collection with respect to the period after the calendar month in which the Effective Date occurs; and the balance shall be applied to the extent of delinquent rents for the period prior to the month immediately preceding the calendar month in which the Effective Date occurs. Any sums received by REIT to which OpCo is entitled shall be held in trust for OpCo on account of said past due rents payable to OpCo, and REIT shall remit any such sums to OpCo within ten (10) days after receipt thereof. OpCo agrees that if OpCo receives any amounts after the Effective Date which are attributable, in whole or in part, to any period after the Effective Date, OpCo shall remit to REIT that portion of the monies so received by OpCo to which REIT is entitled within ten (10) days after receipt thereofSection 10.1.2;
(vik) all rent, charges, additional rent or expenses or other charges and payments under any service contracts in effect with respect to the applicable Golf Course PropertyGround Leases; and
(viil) all such other income from items as are customarily apportioned between sellers and expense relating purchasers of real properties of a type similar to the applicable Golf Course Property of every type and nature as is customary with the closing of a commercial property transaction located in the city and state in which the applicable Golf Course Property is locatedLos Angeles County, California.
(c) If any refund of real property taxes or assessments, water rates and charges or sewer taxes and rents shall be made after the Effective Date and is received by REIT or OpCo, the same shall be held in trust by the receiving party, and shall first be applied to the unreimbursed costs incurred in obtaining the same, and the balance, if any, shall be paid to OpCo (for the period prior to the Effective Date) and to REIT (for the period commencing with the Effective Date).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Dean Witter Realty Yield Plus Ii Lp)
Apportionments. The terms following items shall be prorated as of 12:01 A.M. on the Closing and provisions of this Section 2.7 the net amount thereof shall apply with respect be added to each or deducted from, as the case may be, the amount of the Real Properties set forth on Schedule 2.7 (each, a “Golf Course Property” and collectively, Purchase Price to be paid at the “Golf Course Properties”).Closing;
(a) The prorations general real estate, personal property and apportionments (ad valorem taxes and assessments for the “Apportionments”) hereunder for each Golf Course Property current tax year of the Project. If any such taxes or assessments are payable in installments all installments due through the Closing together with the accrued but unpaid portion of any other installments not yet due as of the Closing shall be jointly prepared paid for by OpCo and REIT on or before the Effective Date on the basis of actual and estimated amounts as provided in Section 2.7(b) of this Agreement. In the event any Apportionments made under this Agreement shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same during the ninety (90) day period after the Effective Date. To the extent it shall be determined that a party was initially allocated any amount of the Apportionments in excess of the amount to which it is entitled hereunder, such party shall remit such excess amount to the other party within ten (10) days after such determination. The Apportionments, as adjusted, if applicable, during said ninety (90) day period shall be conclusive and binding on OpCo and REIT.Seller;
(b) The following taxes, water, sewer and front foot benefit charges, and charges for electricity, gas, telephone and other utilities and license fees;
(c) rent and other charges under the Leases (to the extent monies have actually been collected therefor);
(d) all other income and expenses relating to the Project, including principal and interest payable under each of the Loans; and
(e) any other items that are customarily prorated in transactions of this nature excluding, however, insurance premiums under the Insurance Policies. Any and all security deposits, prepaid rent and all interest earned thereon shall be apportioned as a credit to Buyer at Closing. Seller shall be fully liable for any wages and other amounts due and owing any employees at the Project. Seller shall retain, and shall not be entitled to any credit for, the deposits, if any, made by Seller in connection with the provision of electric, sewer, water, telephone and other utility services to the close Project. Seller shall retain any and all deposits and escrows relating to the Loans. For purposes of business on calculating prorations, Buyer shall be deemed to be in title to the Project, and, therefore, entitled to the income therefrom and responsible for the expenses thereof for the entire day immediately preceding upon which the Effective Date:
(i) real property taxes, sewer taxes and rents, vault taxes and any other governmental taxes and charges levied or assessed against the applicable Golf Course Property or the use thereof, Closing occurs. All such prorations shall be made on the basis of the respective fiscal years for which each is assessed;
(ii) water rates and charges, unless the direct responsibility actual number of any tenant days of the applicable Golf Course Property;
(iii) annual license, permit and inspection fees, if any;
(iv) fuel (month which shall have elapsed as estimated by OpCo’s supplier, at OpCo’s cost, together with sales tax) and steam, gas, electricity charges and all other utilities which are supplied to the applicable Golf Course Property (except to the extent the same are the direct responsibility of any tenant of the applicable Golf Course Property);
(v) rents and all other charges (including reimbursement payments) payable under any lease with a tenant day of the applicable Golf Course Property as Closing and when collected; provided, however, that if any rents under any leases based upon the actual number of days in the month and a three hundred sixty-five (365) day year. The amount of such prorations shall be accrued and unpaid initially performed by Title Company at the Effective Date, the rents collected by REIT on or Closing but shall be subject to adjustment in cash after the Effective Date shall first be applied to all rents due and payable for the calendar month in which the Effective Date occurs; next to all rent due OpCo and payable for the month immediately preceding the calendar month in which the Effective Date occurs; next to all rents due and payable at the time of such collection with respect to the period after the calendar month in which the Effective Date occurs; and the balance shall be applied to the extent of delinquent rents for the period prior to the month immediately preceding the calendar month in which the Effective Date occurs. Any sums received by REIT to which OpCo is entitled shall be held in trust for OpCo on account of said past due rents payable to OpCo, and REIT shall remit any such sums to OpCo within ten (10) days after receipt thereof. OpCo agrees that if OpCo receives any amounts after the Effective Date which are attributable, in whole or in part, to any period after the Effective Date, OpCo shall remit to REIT that portion of the monies so received by OpCo to which REIT is entitled within ten (10) days after receipt thereof;
(vi) all charges and payments under any service contracts in effect with respect to the applicable Golf Course Property; and
(vii) all other income from and expense relating to the applicable Golf Course Property of every type and nature as is customary with the closing of a commercial property transaction in the city and state in which the applicable Golf Course Property is located.
(c) If any refund of real property taxes or assessments, water rates and charges or sewer taxes and rents shall be made after the Effective Date and is received by REIT or OpCo, the same shall be held in trust by the receiving party, and shall first be applied to the unreimbursed costs incurred in obtaining the same, and the balance, if any, shall be paid to OpCo (for the period prior to the Effective Date) and to REIT (for the period commencing with the Effective Date).Closing outside
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Industrial Properties Reit Inc)
Apportionments. The terms following items shall be prorated as of 12:01 A.M. on the Closing and provisions of this Section 2.7 the net amount thereof shall apply with respect be added to each or deducted from, as the case may be, the amount of the Real Properties set forth on Schedule 2.7 (each, a “Golf Course Property” and collectively, Purchase Price to be paid at the “Golf Course Properties”).Closing;
(a) The prorations general real estate, personal property and apportionments (ad valorem taxes and assessments for the “Apportionments”) hereunder for each Golf Course Property current tax year of the Project. If any such taxes or assessments are payable in installments all installments due through the Closing together with the accrued but unpaid portion of any other installments not yet due as of the Closing shall be jointly prepared paid for by OpCo and REIT on or before the Effective Date on the basis of actual and estimated amounts as provided in Section 2.7(b) of this Agreement. In the event any Apportionments made under this Agreement shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same during the ninety (90) day period after the Effective Date. To the extent it shall be determined that a party was initially allocated any amount of the Apportionments in excess of the amount to which it is entitled hereunder, such party shall remit such excess amount to the other party within ten (10) days after such determination. The Apportionments, as adjusted, if applicable, during said ninety (90) day period shall be conclusive and binding on OpCo and REIT.Seller;
(b) The following taxes, water, sewer and front foot benefit charges, and charges for electricity, gas, telephone and other utilities and license fees;
(c) rent and other charges under the Leases (to the extent monies have actually been collected therefor);
(d) all other income and expenses relating to the Project, including principal and interest payable under each of the Loans; and
(e) any other items that are customarily prorated in transactions of this nature excluding, however, insurance premium under the Insurance Policies. Any and all security deposits, prepaid rent and all interest earned thereon shall be apportioned as a credit to Buyer at Closing. Seller shall be fully liable for any wages and other amounts due and owing any employees at the Project. Seller shall retain, and shall not be entitled to any credit for, the deposits, if any, made by Seller in connection with the provision of electric, sewer, water, telephone and other utility services to the close Project. Seller shall retain any and all deposits and escrows relating to the Loans. For purposes of business on calculating prorations, Buyer shall be deemed to be in title to the Project, and, therefore, entitled to the income therefrom and responsible for the expenses thereof for the entire day immediately preceding upon which the Effective Date:
(i) real property taxes, sewer taxes and rents, vault taxes and any other governmental taxes and charges levied or assessed against the applicable Golf Course Property or the use thereof, Closing occurs. All such prorations shall be made on the basis of the respective fiscal years for which each is assessed;
(ii) water rates and charges, unless the direct responsibility actual number of any tenant days of the applicable Golf Course Property;
(iii) annual license, permit and inspection fees, if any;
(iv) fuel (month which shalt have elapsed as estimated by OpCo’s supplier, at OpCo’s cost, together with sales tax) and steam, gas, electricity charges and all other utilities which are supplied to the applicable Golf Course Property (except to the extent the same are the direct responsibility of any tenant of the applicable Golf Course Property);
(v) rents and all other charges (including reimbursement payments) payable under any lease with a tenant day of the applicable Golf Course Property Closing and based upon the actual number of days in the month and a three hundred sixty-five (365) day year. The amount of such prorations shall be initially performed by Title Company at Closing but shall be subject to adjustment in cash after the Closing outside of escrow as and when collected; providedcomplete and accurate information becomes available, however, that if any rents under any leases shall be accrued and unpaid such information is not available at the Effective Date, the rents collected by REIT on or Closing. Seller and Buyer agree to cooperate and use their best efforts to make such adjustments no later than sixty (60) days after the Effective Date shall first be applied to all rents due and payable for the calendar month in which the Effective Date occurs; next to all rent due OpCo and payable for the month immediately preceding the calendar month in which the Effective Date occurs; next to all rents due and payable at the time of such collection Closing (except with respect to the period property taxes, which shall be adjusted within sixty (60) days after the calendar month in which the Effective Date occurs; and the balance shall be applied to the extent of delinquent rents tax bills for the applicable period are received). Without limiting the generality of the foregoing, Seller and Buyer hereby agree that with respect to any year-end reconciliations of reimbursable expenses under the Leases, Seller and Buyer shall cooperate to complete such reconciliations as soon as possible after the Closing, with Seller responsible for amounts owing to tenants under the Leases, and entitled to Rents (hereinafter defined) payable by tenants under the Leases (as the case may be), with respect to periods prior to the month immediately preceding the calendar month in which the Effective Date occurs. Any sums received by REIT to which OpCo is entitled shall be held in trust for OpCo on account of said past due rents payable to OpCoClosing, and REIT shall remit any such sums with Buyer responsible for amounts owing to OpCo within ten tenants under the Leases, and entitled to Rents payable by tenants under the Leases (10) days after receipt thereof. OpCo agrees that if OpCo receives any amounts after as the Effective Date which are attributablecase may be), in whole or in part, to any period after the Effective Date, OpCo shall remit to REIT that portion of the monies so received by OpCo to which REIT is entitled within ten (10) days after receipt thereof;
(vi) all charges and payments under any service contracts in effect with respect to the applicable Golf Course Property; and
(vii) all other income periods from and expense relating to the applicable Golf Course Property of every type and nature as is customary with the closing of a commercial property transaction in the city and state in which the applicable Golf Course Property is located.
(c) If any refund of real property taxes or assessments, water rates and charges or sewer taxes and rents shall be made after the Effective Date and is received by REIT or OpCoClosing (and, the same with respect to any such amounts payable to Seller, Buyer shall be held in trust by the receiving partyhave no obligation to collect such Rents, and shall first be applied including having no obligation to the unreimbursed costs incurred in obtaining the sameinstitute legal proceedings, and the balanceincluding any action for unlawful detainer, if anyagainst a tenant owing any such Rents, shall be paid other than to OpCo (for the period prior to the Effective Date) and to REIT (for the period commencing with the Effective Date).use
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Industrial Properties Reit Inc)
Apportionments. (a) The terms and provisions of this Section 2.7 shall apply with respect following charges relating to each of the Leased Real Properties, except those Leased Real Properties set forth that are not retail stores, that relate to a period that begins prior to the Closing Date and ends after the Closing Date are to be apportioned between the Company, on Schedule 2.7 (eachthe one hand, a “Golf Course Property” and collectivelyPurchaser, on the “Golf Course Properties”).other hand, as of midnight of the day preceding the Closing Date:
(ai) The prorations rent apportioned for the month in which the Closing Date occurs;
(ii) assessments, water meter charges, and apportionments (the “Apportionments”) hereunder for each Golf Course Property shall be jointly prepared by OpCo and REIT on or before the Effective Date sewer rents, if any, on the basis of actual the fiscal year for which assessed;
(iii) charges and estimated fees payable for telephone services, water, heat, steam, electric power, gas and other utilities, at the price charged by the suppliers, including any taxes thereon and based upon applicable meter readings, where available, made on or immediately prior to the Closing Date; and
(iv) amounts as provided in Section 2.7(bdue to the landlords for expense adjustments for property, income or other taxes, “CAM” and other obligations under the Lease. Items (i) of this Agreement. In through (iv) above which relate to the event any Apportionments made under this Agreement shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same during the ninety (90) day period after the Effective Date. To the extent it shall be determined that a party was initially allocated any amount pre-Closing obligations of the Apportionments in excess of Company are hereinafter referred to as the amount to which it is entitled hereunder, such party shall remit such excess amount to the other party within ten (10) days after such determination. The Apportionments, as adjusted, if applicable, during said ninety (90) day period shall be conclusive and binding on OpCo and REIT“Company Apportionment Obligations.
(b) The following shall be apportioned as parties hereto acknowledge and agree that the landlords of the close of business on the day immediately preceding the Effective Date:
(i) real property taxes, sewer taxes Leases that are assumed and rents, vault taxes and any other governmental taxes and charges levied assigned to Purchaser or assessed against the applicable Golf Course Property or the use thereof, on the basis of the respective fiscal years for which each is assessed;
(ii) water rates and charges, unless the direct responsibility of any tenant of the applicable Golf Course Property;
(iii) annual license, permit and inspection fees, if any;
(iv) fuel (as estimated by OpCo’s supplier, at OpCo’s cost, together with sales tax) and steam, gas, electricity charges and its Designee must submit all other utilities which are supplied to the applicable Golf Course Property (except to the extent the same are the direct responsibility of any tenant of the applicable Golf Course Property);
(v) rents and all other charges (including reimbursement payments) payable under any lease with a tenant of the applicable Golf Course Property as and when collected; provided, however, that if any rents under any leases shall be accrued and unpaid at the Effective Date, the rents collected by REIT on or after the Effective Date shall first be applied to all rents due and payable for the calendar month in which the Effective Date occurs; next to all rent due OpCo and payable for the month immediately preceding the calendar month in which the Effective Date occurs; next to all rents due and payable at the time of such collection with respect to the period after the calendar month in which the Effective Date occurs; and the balance shall be applied to the extent of delinquent rents for the period Company Apportionment Obligations prior to the month immediately preceding the calendar month in which the Effective Date occurs. Any sums received by REIT to which OpCo is entitled September 15, 2006 or such expenses shall not be held in trust for OpCo on account of said past due rents payable to OpCo, and REIT shall remit any such sums to OpCo within ten (10) days after receipt thereof. OpCo agrees that if OpCo receives any amounts after the Effective Date which are attributable, in whole or in part, to any period after the Effective Date, OpCo shall remit to REIT that portion of the monies so received by OpCo to which REIT is entitled within ten (10) days after receipt thereof;
(vi) all charges and payments under any service contracts in effect with respect to the applicable Golf Course Property; and
(vii) all other income from and expense relating to the applicable Golf Course Property of every type and nature as is customary with the closing of a commercial property transaction in the city and state in which the applicable Golf Course Property is located.
(c) If any refund of real property taxes or assessments, water rates and charges or sewer taxes and rents shall be made after the Effective Date and is received by REIT or OpCo, the same shall be held in trust by the receiving party, and shall first be applied to the unreimbursed costs incurred in obtaining the sameallowed against, and the balance, if any, landlord shall be paid barred from collecting such charges from Purchaser, Purchaser’s Designee, the Company or its estate.”
4. Amendment to OpCo (for Section 4.8(b). Section 4.8(b) of the period prior to Purchase Agreement is hereby deleted in its entirety and the Effective Date) and to REIT (for the period commencing with the Effective Date).following is inserted in lieu thereof:
Appears in 1 contract
Sources: Purchase Agreement (Gadzooks Inc)
Apportionments. The terms and provisions of this Section 2.7 shall apply with respect to each of the Real Properties set forth on Schedule 2.7 (each, a “Golf Course Property” and collectively, the “Golf Course Properties”).
(a) The prorations and apportionments (the “Apportionments”) hereunder for each Golf Course Property shall be jointly prepared by OpCo and REIT on or before the Effective Date on the basis of actual and estimated amounts as provided in Section 2.7(b) of this Agreement. In the event any Apportionments made under this Agreement shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same during the ninety (90) day period after the Effective Date. To the extent it shall be determined that a party was initially allocated any amount of the Apportionments in excess of the amount to which it is entitled hereunder, such party shall remit such excess amount to the other party within ten (10) days after such determination. The Apportionments, as adjusted, if applicable, during said ninety (90) day period shall be conclusive and binding on OpCo and REIT.
(b) The following shall be apportioned and/or addressed between Seller and Purchaser at the Closing as of the close 11:59 p.m. of business on the day immediately preceding the Effective Date:Closing Date (the "Cut-Off Time"):
(i) real property taxesProperty Taxes, assessments billed together with Property Taxes, water charges, sewer taxes rents and rentsvault charges, vault taxes and any other governmental taxes and charges levied or assessed against the applicable Golf Course Property or the use thereofif any, on the basis of the respective fiscal years years, respectively, for which each is same have been assessed;
(ii) water rates charges and charges, unless payments under the direct responsibility of any tenant of the applicable Golf Course PropertyContracts or permitted renewals or replacements thereof assumed by Purchaser;
(iii) any prepaid items, including, without limitation, fees for Licenses which are transferred to Purchaser at the Closing and annual license, permit and inspection fees, if any;
(iv) fuel (as estimated by OpCo’s supplierutilities, at OpCo’s costincluding, together with sales tax) and without limitation, telephone, steam, electricity and gas, electricity charges and all other utilities which are supplied to on the applicable Golf Course Property (except to the extent the same are the direct responsibility of any tenant basis of the applicable Golf Course Property)most recently issued bills therefor, subject to adjustment after the Closing when the next bills are available, or if current meter readings are available, on the basis of such readings;
(v) rents deposits with telephone and all other charges (including reimbursement payments) payable under utility companies, and any lease other persons or entities who supply goods or services in connection with a tenant of Property if same are assigned to Purchaser at the applicable Golf Course Property as and when collected; providedClosing, however, that if any rents under any leases which shall be accrued and unpaid at the Effective Date, the rents collected by REIT on or after the Effective Date shall first be applied credited in their entirety to all rents due and payable for the calendar month in which the Effective Date occurs; next to all rent due OpCo and payable for the month immediately preceding the calendar month in which the Effective Date occurs; next to all rents due and payable at the time of such collection with respect to the period after the calendar month in which the Effective Date occurs; and the balance shall be applied to the extent of delinquent rents for the period prior to the month immediately preceding the calendar month in which the Effective Date occurs. Any sums received by REIT to which OpCo is entitled shall be held in trust for OpCo on account of said past due rents payable to OpCo, and REIT shall remit any such sums to OpCo within ten (10) days after receipt thereof. OpCo agrees that if OpCo receives any amounts after the Effective Date which are attributable, in whole or in part, to any period after the Effective Date, OpCo shall remit to REIT that portion of the monies so received by OpCo to which REIT is entitled within ten (10) days after receipt thereofSeller;
(vi) all charges trade association dues and payments under any service contracts in effect with respect to the applicable Golf Course Propertytrade subscriptions, if any; and
(vii) all such other income from items as are customarily apportioned between sellers and expense relating purchasers of real properties of a type similar to the applicable Golf Course Property of every type and nature as is customary with the closing of a commercial property transaction located in the city and state jurisdiction in which the applicable Golf Course Property is located.
(cb) If any refund the Closing shall occur before a new Property Tax rate is fixed, the apportionment of real property taxes or assessments, water rates and charges or sewer taxes and rents Property Taxes at the Closing shall be made after upon the Effective Date and is received by REIT or OpCo, basis of the same shall be held in trust by old tax rate for the receiving party, and shall first be preceding fiscal year applied to the unreimbursed costs incurred latest assessed valuation.
(c) At Closing, Purchaser shall purchase all unopened food and beverage inventory from Seller at Seller's actual cost.
(d) If as of the Closing Date the Property or any part thereof shall be affected by any assessment or assessments other than Property Taxes, which are or may become payable in obtaining installments, but which are not included on the sameProperty Tax ▇▇▇▇, of which the first installment is a charge or lien, then (A) Seller shall be obligated to pay all installments of any such assessment which are due and payable prior to the Closing Date, and (B) for the balancepurposes of this Agreement, all the unpaid installments of any such assessment which are to become due and payable on or after the Closing Date shall not be deemed to be liens upon Property and the payment thereof shall be assumed by Purchaser without abatement of the Purchase Price.
(e) Effective as of the Closing Date, Seller shall (or cause Manager to) terminate Seller's employer/employee relationship, if any, with all persons employed (the "Hotel Employees") at the Property (and wages of such employees working as of the Cut-Off Time will be prorated as of the end of their respective 8-hour shifts with all such wages before the Cut-Off Time for account of Seller and all wages from and after the Cut-Off Time for account of Purchaser). As of the Closing Date, Purchaser will hire or will cause its manager to hire a sufficient number of the Hotel Employees to prevent from occurring an event requiring notice under the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2101 et seq.) or similar state or local statutes, if any (collectively, "WARN"). Purchaser agrees to be responsible for and hereby indemnifies and agrees to hold Seller, Manager and their affiliates harmless from and against claims and liabilities arising from violations by Purchaser of its obligations hereunder that create any liability under WARN.
(f) At Closing, Seller shall be paid provide, or shall cause the Manager to OpCo provide, Purchaser with a schedule (the "Seller's Accounts Receivable Schedule") of all guest room, food, beverage and other charges (including, without limitation, telephone and other items charged to transient guests, parking charges, revenues arising from telephone booths, coin-operated laundry equipment, vending machines and games, check rooms, and any and all other charges and revenues relating to goods and services provided by Seller or Manager in connection with Property) owing to Seller for services rendered and any payments due or payable or credits receivable with respect to the operation of Property for any period prior to the Effective DateClosing Date (collectively "Seller's Accounts Receivable"). Purchaser shall purchase all of Seller's Accounts Receivable from Seller that are no older than fifteen (15) days past due at Closing. Purchaser shall use reasonable efforts to collect Seller's Accounts Receivable that were more than fifteen (15) days past due as of the Closing Date on behalf of Seller (without any obligation on the part of Purchaser to (i) undertake litigation to collect such amounts due to Seller or (ii) expend funds), and Purchaser shall deliver to Seller, in accordance with this Section 1.4, any collected accounts receivable that belong to Seller. Purchaser's repayment obligations set forth in this Section shall survive Closing for a period of six (6) months.
(g) All deposits or advances from guests or others on account of advance bookings or reservations, and prepaid commissions received by Seller (or the Manager) from credit and referral organizations, for periods from and after the Closing Date (collectively, the "Advance Booking Deposits") shall be turned over to Purchaser at Closing and Purchaser agrees to honor the bookings related thereto and related to the Hotel after Closing.
(h) With respect to the following items, all such items accruing prior to 12:01 AM on the Closing Date shall belong to Seller, and all such items accruing from and after 12:01 AM on the Closing Date shall belong to Purchaser:
(i) charges to transient guests for rooms, food, beverage, telephone and other charges (it being the intent that Seller retains the final night room revenue);
(ii) revenues, if any, arising from telephone booths, vending machines (including coin-operated laundry equipment) and check rooms; and
(iii) such other items as are customarily treated in this manner upon the sale of similar hotel businesses (except as otherwise specifically provided herein).
(i) As of the Cut-Off Time, Seller and Purchaser shall determine the amount of all cash on hand money then held in connection with the operation of the hotel at Property for use as house banks, and all other cash, cash equivalents, deposits and accounts relating to REIT the operation of the Hotel, whether in the possession of Seller or Manager, and (except as to Advance Booking Deposits) the aggregate amount thereof shall be purchased by Purchaser.
(j) Subject to Purchaser's obligation pursuant to Section 1.4(c) above, Seller shall be responsible for payments of amounts owing to third parties in respect of inventory and supplies ordered by Seller in respect of the Property prior to the Closing Date to the extent such items have been delivered to the Property prior to the Closing Date. To the extent the same are delivered to the Property on or after the Closing Date, Purchaser shall be responsible for payment of the same.
(k) Purchaser, at Purchaser's sole expense, shall be responsible for the period commencing with transfer or acquisition of accounts and licenses (including liquor licenses, if transferable) regarding the Effective DateProperty, and the establishment of all utility services to the Property, in the name of Purchaser as of Closing. Such transfers or acquisitions shall not be a condition or requirement of Closing.
(l) Purchaser shall be credited, in the form of a decrease in Purchase Price, an amount equal to the product of (i) the face value gift certificates sold, but not redeemed as of the Closing times (ii) ninety percent (90%).
(m) The provisions of this Section 1.4 shall survive the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Condor Hospitality Trust, Inc.)
Apportionments. (a) The terms following shall be apportioned between Seller and provisions Purchaser at the Closing as of this Section 2.7 shall apply with respect to each 12:01 a.m. of the Real Properties Closing Date:
(i) general real estate, personal property and ad valorem taxes and assessments for the Premises (other than same applicable to the RDA Land, which amounts shall be the responsibility of Seller, in its capacity as lessee, under the Triple Net Lease) on the basis of the fiscal years, respectively, for which same have been assessed. If any such taxes or assessments are payable in installments all installments due through the Closing together with the accrued but unpaid portion of any other installments not yet due as of the Closing shall be prorated based on the periods of time covered by such installments as set forth in Section 3(g) below;
(ii) water, sewer and front foot benefit charges, and charges for electricity, gas, telephone and other utilities, license and permit fees, in each case applicable to the Premises;
(iii) value of fuel used in connection with the Premises (to the extent not accounted for pursuant to clause (ii) above), at Seller's cost, including any taxes, on Schedule 2.7 the basis of a reading performed within one (each1) day prior to the Closing or as close thereto as reasonably practical by Seller's supplier;
(iv) rent (including base and additional rent) and other charges under the Leases;
(v) charges and payments under Contracts not terminated at Closing or renewals or replacements thereof permitted by this Agreement;
(vi) any prepaid items applicable to the Premises, including, without limitation, fees for licenses which are transferred to Purchaser at the Closing and annual permit and inspection fees;
(vii) all other income and expenses relating to the Premises; and
(viii) such other items as are customarily apportioned between sellers and purchasers of real properties of a “Golf Course Property” type similar to the Premises and collectivelylocated in the vicinity of the Premises.
(b) If the Closing shall occur before a new real estate tax rate is fixed for the Land, the “Golf Course Properties”apportionment of taxes at the Closing shall be upon the basis of the old tax rate for the preceding fiscal year applied to the latest assessed valuation. Promptly after the new tax rate is fixed, the apportionment of taxes shall be recomputed and any discrepancy resulting from such recomputation and any errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party reimbursed, which obligations shall survive the Closing in accordance with Section 3(f).
(ai) The prorations Any and apportionments (the “Apportionments”) hereunder all Security Deposits, prepaid rent for each Golf Course Property periods after Closing and all interest earned thereon shall be jointly prepared by OpCo a credit to Purchaser at Closing. Seller shall assign to Purchaser, and REIT on or before the Effective Date on the basis of actual and estimated amounts as provided in Section 2.7(b) of this Agreement. In the event any Apportionments made under this Agreement shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment credit for, the deposits, if any, made by Seller in connection with the provision of electric, sewer, water, telephone and other utility services to correct the same Premises.
(ii) If on the Closing Date any tenant is in arrears under a Lease in the payment of rent or Additional Rents (hereinafter defined) or has not paid the rent or Additional Rents payable by it and which is attributable to the month in which the Closing occurs (whether or not it is in arrears for such month on the Closing Date), any rents or Additional Rents received by Purchaser or Seller from such tenant after the Closing shall be applied to amounts due and payable by such tenant during the ninety following periods in the following order of priority: (90A) day first, to rents and Additional Rents attributable to the month in which the Closing occurred, (B) second, to rents and Additional Rents attributable to the month preceding the month in which the Closing occurred and which are due and payable, and (C) third, to rents and Additional Rents attributable to the months following the month in which the Closing occurred; provided, however, if any rental payment specifies that such rental payment is attributable to a particular period, then such rental payment shall be applied to the period so specified. If rents or Additional Rents or any portion thereof received by Seller or Purchaser after the Effective Date. To Closing are due and payable to the extent it other party by reason of this allocation, the appropriate sum shall be determined that a party was initially allocated any amount of the Apportionments in excess of the amount to which it is entitled hereunder, such party shall remit such excess amount promptly paid to the other party within ten (10) days Business Days after receipt thereof.
(iii) If any tenants are required to pay percentage rent, escalation charges for real estate taxes, parking charges, utility charges, operating expenses and maintenance escalation rents or charges, cost of living increases or other charges of a similar nature pursuant to and in connection with any Lease (collectively, the "ADDITIONAL RENTS"), and any Additional Rents are collected by Purchaser from a tenant after the Closing Date, then such Additional Rents shall be equitably apportioned based on the period for which collected and applied in the same order of priority as is set forth in Section 3(c)(ii) and Purchaser shall promptly pay to Seller out of such sums received from such tenant the amount specified in the preceding clause (ii) and this clause (iii).
(iv) In the event Seller and Purchaser cannot agree upon the amount or method of any apportionments required to be made pursuant to this Section 3(c), then Seller and Purchaser shall make such apportionments to which they agree at the Closing, and within ten (10) Business Days of the Closing Date, Purchaser and Seller shall retain a third party expert reasonably acceptable to both Seller and Purchaser, which third party expert shall conclusively determine the item or items in dispute, and within ten (10) Business Days of such determination the proper party shall be reimbursed in accordance with such determination. Seller and Purchaser shall share equally in the costs and expenses of any such third party expert. The Apportionments, as adjusted, if applicable, during said ninety obligations set forth in this Section 3(c)(iv) shall survive the Closing for a period of one hundred eighty (90180) day period shall be conclusive and binding on OpCo and REITdays after the Closing Date.
(bv) The following provisions of this Section 3(c) shall survive the Closing for a period of one (1) year.
(d) For purposes of calculating prorations, Purchaser shall be deemed to be in title to the Premises, and, therefore, entitled to the income therefrom and responsible for the expenses thereof for the entire day upon which the Closing occurs. All such prorations shall be made by the parties at Closing on the basis of the actual number of days of the month which shall have elapsed as of the day of the Closing and based upon the actual number of days in the month and a three hundred sixty five (365) day year, and shall be subject to adjustment in cash after the Closing outside of escrow as and when complete and accurate information becomes available, if such information is not available at the Closing. Seller and Purchaser agree to cooperate and use their commercially reasonable efforts to make such adjustments no later than sixty (60) days after the Closing (except with respect to property taxes and amounts payable by any tenant, which shall be adjusted within sixty (60) days after the actual amounts are known) . In any event, all items (other than property taxes and amounts payable by any tenant) shall be final and not subject to further adjustment on the date which is six (6) months after the Closing Date, except as specifically provided in this Agreement to the contrary. Without limiting the generality of the foregoing, Seller and Purchaser hereby agree that with respect to any year end reconciliations of reimbursable expenses under the Leases, Seller and Purchaser shall cooperate to complete such reconciliations as soon as possible after the Closing, with Seller responsible for amounts owing to tenants under the Leases, and entitled to Rents (hereinafter defined) payable by tenants under the Leases (as the case may be) , with respect to periods prior to the Closing, and with Purchaser responsible for amounts owing to tenants under the Leases, and entitled to Rents payable by tenants under the Leases (as the case may be), with respect to periods from and after the Closing. Purchaser shall receive a credit at Closing for the prorated amount of all Rent previously paid by tenants and attributable to any period from and after the Closing Date. Seller shall not receive a cash credit for any rent due and owing by tenants and not paid as of the Closing Date but shall be entitled to the rights set forth in Section 3(c)(ii). The provisions of this Section 3(d) shall survive the Closing.
(e) If there is a water meter on the Premises, Seller shall furnish a reading to a date not more than five (5) Business Days prior to the Closing Date, and the unfixed water charges and sewer rent, if any, based thereon for the intervening time shall be apportioned on the basis of such last reading.
(f) If any of the items subject to apportionment under the foregoing provisions of this Section 3 cannot be apportioned at the Closing because of the unavailability of the information necessary to compute such apportionment, or if any errors or omissions in computing apportionments at the Closing are discovered subsequent to the Closing, then such item shall be reapportioned and such errors and omissions corrected as soon as practicable after the Closing Date and the proper party reimbursed, which obligation shall survive the Closing for a period of one hundred eighty (180) days after the Closing Date as hereinafter provided. Neither party hereto shall have the right to require a recomputation of a Closing apportionment or a correction of an error or omission in a Closing apportionment unless within the aforestated 180-day period either Purchaser or Seller (i) has obtained the previously unavailable information or has discovered the error or omission, and (ii) has given notice thereof to the other party, together with a copy of its good faith recomputation of the apportionment and copies of all substantiating information used in such recomputation. The failure of a party to obtain any previously unavailable information or discover an error or omission with respect to an item subject to apportionment hereunder and to give notice thereof as provided above within one hundred eighty (180) days after the Closing Date shall be deemed a waiver of its right to cause a recomputation or a correction of an error or omission with respect to such item after the Closing Date. The provisions of Section 3(f) shall survive the Closing.
(g) If, on the Effective Date or the Closing Date, the Premises or any part thereof shall be affected by any assessment or assessments which are or may become payable in installments, then any such assessment shall be prorated between the Seller and the Purchaser and shall be divided between Seller and Purchaser in accordance with the apportionment of taxes pursuant to the provisions of this Agreement, and all the unpaid installments of any such assessment which are to become due and payable on or after the Closing Date and attributable to the period on or after the Closing Date shall be assumed by Purchaser without abatement of the Purchase Price.
(h) Charges for all electricity, steam, telephone, gas and other utility services at the Premises (collectively, "UTILITIES") shall be billed to Seller's account up to the Closing Date and, from and after the Closing Date, all utilities shall be billed to Purchaser's account. If for any reason such changeover in billing is not practicable as of the close of business Closing Date, as to any Utility, such Utility shall be apportioned on the day immediately preceding the Effective Date:
(i) real property taxesbasis of actual current readings or, sewer taxes and rents, vault taxes and any other governmental taxes and charges levied or assessed against the applicable Golf Course Property or the use thereofif such readings have not been made, on the basis of the respective fiscal years for which each most recent bills that are available. If any apportionment is assessed;not based on an actual current reading, then upon the taking of a subsequent actual reading, the parties shall, within ten (10) Business Days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Purchaser shall promptly deliver to Seller, as the case may be, the amount determined to be due upon such adjustment. Seller shall use reasonable efforts to schedule utility meter readings with five (5) business days of the Closing Date.
(iii) water rates and charges, unless the direct responsibility of any tenant of the applicable Golf Course Property;
(iii) annual license, permit and inspection fees, if any;
(iv) fuel (as estimated by OpCo’s supplier, at OpCo’s cost, together with sales tax) and steam, gas, electricity charges and all other utilities which are supplied to the applicable Golf Course Property (except to To the extent the same are ascertainable on the direct responsibility of any tenant Closing Date, if the computation of the applicable Golf Course Property);
(v) rents and all other charges (including reimbursement payments) payable under any lease with aforementioned apportionments shows that a tenant of the applicable Golf Course Property as and when collected; providednet amount is owed by Seller to Purchaser, however, that if any rents under any leases such amount shall be accrued and unpaid at credited against the Effective Purchase Price payable by Purchaser on the Closing Date. To the extent the same are ascertainable on the Closing Date, the rents collected if such computation shows that a net amount is owed by REIT on or after the Effective Date shall first be applied Purchaser to all rents due and payable for the calendar month in which the Effective Date occurs; next to all rent due OpCo and payable for the month immediately preceding the calendar month in which the Effective Date occurs; next to all rents due and payable at the time of Seller, such collection with respect to the period after the calendar month in which the Effective Date occurs; and the balance shall be applied to the extent of delinquent rents for the period prior to the month immediately preceding the calendar month in which the Effective Date occurs. Any sums received by REIT to which OpCo is entitled shall be held in trust for OpCo on account of said past due rents payable to OpCo, and REIT shall remit any such sums to OpCo within ten (10) days after receipt thereof. OpCo agrees that if OpCo receives any amounts after the Effective Date which are attributable, in whole or in part, to any period after the Effective Date, OpCo shall remit to REIT that portion of the monies so received by OpCo to which REIT is entitled within ten (10) days after receipt thereof;
(vi) all charges and payments under any service contracts in effect with respect to the applicable Golf Course Property; and
(vii) all other income from and expense relating to the applicable Golf Course Property of every type and nature as is customary with the closing of a commercial property transaction in the city and state in which the applicable Golf Course Property is located.
(c) If any refund of real property taxes or assessments, water rates and charges or sewer taxes and rents shall be made after the Effective Date and is received by REIT or OpCo, the same shall be held in trust by the receiving party, and shall first be applied to the unreimbursed costs incurred in obtaining the same, and the balance, if any, amount shall be paid to OpCo (for Seller by Purchaser on the period prior to the Effective Date) and to REIT (for the period commencing Closing Date in accordance with the Effective DateSection 2(d).
Appears in 1 contract
Sources: Sale Purchase Agreement (Readers Digest Association Inc)
Apportionments. The terms and provisions of this Section 2.7 shall apply with respect to each of the Real Properties set forth on Schedule 2.7 (each, a “Golf Course Property” and collectively, the “Golf Course Properties”).
(a) The prorations and apportionments (the “Apportionments”) hereunder for each Golf Course Property shall be jointly prepared by OpCo and REIT on or before the Effective Date on the basis of actual and estimated amounts as provided in Section 2.7(b) of this Agreement. In the event any Apportionments made under this Agreement shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same during the ninety (90) day period after the Effective Date. To the extent it shall be determined that a party was initially allocated any amount of the Apportionments in excess of the amount to which it is entitled hereunder, such party shall remit such excess amount to the other party within ten (10) days after such determination. The Apportionments, as adjusted, if applicable, during said ninety (90) day period shall be conclusive and binding on OpCo and REIT.
(b) A. The following shall be apportioned between Seller and Purchaser at the Closing with respect to the Premises as of the close 11:59 p.m. of business on the day immediately preceding the Effective Closing Date, and the net amount thereof either shall be paid by Purchaser to Seller or credited to Purchaser, as the case may be, at the Closing:
i. Common Charges, including any special assessments then in effect, if any, for the month in which the Closing occurs and any other outstanding Common Charges or assessments;
ii. Real property taxes and assessments (ior installments thereof), payments required to be made to any business improvement district (“BID taxes”) and vault charges, except those required by Leases to be paid by a Tenant directly to the entity imposing same;
iii. Water rates and charges, except those required by Leases to be paid by a Tenant directly to the entity imposing same;
iv. Sewer taxes and rents, except those required by Leases to be paid by a Tenant directly to the entity imposing same;
v. Rents (as hereinafter defined), if, as and when collected, in accordance with Section 7(F) hereof;
vi. Leasing Costs (hereinafter defined), in accordance with Section 20(B) hereof;
vii. Payments due under any Surviving Contracts;
viii. wages, sick days, vacation days and employee benefit fund contributions (other than and not including pension withdrawal liability, which is addressed in Article 11 hereof); and
ix. All other items customarily apportioned in connection with the sale of similar properties similarly located.
B. Apportionment of real property taxes, BID taxes, water rates and charges, sewer taxes and rents, rents and vault taxes and any other governmental taxes and charges levied or assessed against the applicable Golf Course Property or the use thereof, shall be made on the basis of the respective fiscal years year for which each is assessed;
(ii) . If the Closing Date shall occur before the real property tax rate, BID taxes, 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 property tax rate, BID taxes, water rates and charges, unless the direct responsibility of any tenant of the applicable Golf Course Property;
(iii) annual licensesewer taxes and rents or vault charges, permit and inspection feesas applicable, if any;
(iv) fuel (as estimated by OpCo’s supplier, at OpCo’s cost, together with sales tax) and steam, gas, electricity charges and all other utilities which are supplied to the applicable Golf Course Property (except to the extent the same are the direct responsibility of any tenant of the applicable Golf Course Property);
(v) rents and all other charges (including reimbursement payments) payable under any lease with a tenant of the applicable Golf Course Property as and when collected; provided, however, that if any rents under any leases shall be accrued and unpaid at the Effective Date, the rents collected by REIT on or after the Effective Date shall first be applied to all rents due and payable for the calendar month in which the Effective Date occurs; next to all rent due OpCo and payable for the month immediately preceding the calendar month in which the Effective Date occurs; next to all rents due and payable at the time of such collection with respect to the period after the calendar month in which the Effective Date occurs; and the balance shall be year applied to the extent latest assessed valuation. After the real property taxes, BID taxes, water rates and charges, sewer taxes and rents and vault charges are finally fixed, Seller and Purchaser shall make a recalculation of delinquent rents for the period prior apportionment of same after the Closing, and Seller or Purchaser, as the case may be, shall make an appropriate payment to the month immediately preceding the calendar month in which the Effective Date occurs. Any sums received by REIT to which OpCo is entitled shall be held in trust for OpCo on account other based upon such recalculation.
C. The amount of said past due rents payable to OpCo, and REIT shall remit any such sums to OpCo within ten (10) days after receipt thereof. OpCo agrees that if OpCo receives any amounts after the Effective Date which are attributable, in whole or in part, to any period after the Effective Date, OpCo shall remit to REIT that portion of the monies so received by OpCo unpaid taxes, assessments, water rates or charges, sewer rents and vault charges which Seller is obligated to which REIT is entitled within ten pay and discharge, with interest and penalties thereon (10if any) days after receipt thereof;
(vi) all charges and payments under any service contracts in effect with respect to the applicable Golf Course Property; and
Closing Date may, at Seller’s option, be allowed to Purchaser out of the balance of the Purchase Price, provided that official bills therefor with interest and penalties thereon (viiif any) all other income are furnished by Seller at the Closing and provided that the Title Insurer will omit same as exceptions from and Purchaser’s title insurance policy, at no additional cost or expense relating to the applicable Golf Course Property of every type and nature as is customary with the closing of a commercial property transaction in the city and state in which the applicable Golf Course Property is locatedPurchaser.
(c) D. If any refund of real property taxes, BID taxes, water rates or charges, sewer taxes or assessmentsrents or vault charges is made after the Closing Date covering a period prior to and/or after the Closing Date, the same shall be applied first to the reasonable out-of-pocket costs incurred by Seller or Purchaser, as the case may be, in obtaining same and the balance, if any, of such refund, to the extent received by Purchaser, shall be paid to Seller to the extent that any portion thereof is attributable to the period prior to the Closing Date and, to the extent received by Seller, shall be paid to Purchaser to the extent that any portion thereof is attributable to the period commencing on the Closing Date. Any payment to Seller pursuant to the immediately preceding sentence shall be net of any amount payable to a Tenant in accordance with its Lease (and any payment to Purchaser by Seller pursuant to the immediately preceding sentence shall include any amount payable to a Tenant in accordance with its Lease, and Purchaser shall pay any such amounts received by Purchaser from Seller to the extent owing to such Tenant). Purchaser hereby agrees to indemnify, defend and hold harmless Seller against any claims, losses, costs and expenses incurred by Seller to the extent resulting from Purchaser’s failure to remit such amount payable to such Tenant pursuant to its Lease promptly after receipt thereof from Seller by Purchaser (including, without limitation, any reasonable attorneys’ fees, disbursements and court costs). Purchaser’s indemnification obligations hereunder shall survive the Closing and delivery of the Deeds.
E. If there are meters measuring water consumption or sewer usage at the Property (other than meters measuring water consumption or sewer usage for which a Tenant is obligated to pay under its Lease directly to the taxing authority or utility), Seller shall attempt to obtain readings to a date not more than thirty (30) days prior to the Closing Date. If such readings are not obtained (and if such readings are obtained, then with respect to any period between such reading and the Closing Date), water rates and charges or and sewer taxes and rents rents, if any, shall be made apportioned based upon the last meter readings, subject to reapportionment when readings for the relevant period are obtained after the Effective Closing Date. If any of the Tenants pay electric charges based on a submeter for their electric consumption, then Seller shall cause any such submeter to be read as close as possible to the Closing Date and is received by REIT upon completion of such reading, Seller shall ▇▇▇▇ each such Tenant electric charges, based on such reading. At the Closing, Seller shall provide the Purchaser with documentation as to any such readings and ▇▇▇▇▇▇▇▇ for submetered electric charges.
F. To the extent that Seller or OpCoPurchaser receives Rents after the Closing Date, the same shall be held in trust by Seller or Purchaser, as the receiving partycase may be, and shall first be applied in the order of priority set forth in this Section 7(F).
i. The following terms shall be as defined herein: “Base Rents”: fixed rent, and other amounts of a fixed nature (which may include, without limitation, electric inclusion and supplemental water, HVAC and condenser water charges paid or payable by Tenants); “Overage Rents”: a percentage of the Tenant’s business during a specified annual or other period (sometimes referred to as “percentage rent”), so-called “escalation rent”, and additional rent based upon increases in or otherwise attributable to real estate and BID taxes, operating expenses, utility costs, a cost of living index or ▇▇▇▇▇▇’▇ wages or otherwise, but which shall in no event include Reimbursable Payments (as hereinafter defined); “Reimbursable Payments”: overtime heat, air conditioning or other utilities or services; freight elevator; electric inclusion and adjustments related to electric usage (such as rate and/or fuel adjustments and survey); submetered electric; supplemental water, HVAC, and condenser water charges; services or repairs, and labor costs associated therewith, to the unreimbursed costs incurred in obtaining extent to which a Tenant is obligated to reimburse the same, and the balance, if any, shall be paid to OpCo (landlord under its Lease or for the period which a Tenant has separately contracted with Seller or its agent; true-ups on account of escalation and/or additional rent for years prior to the Effective Date) year in which the Closing occurs; amounts payable for above standard cleaning; and all other items that are payable to REIT Seller as reimbursement or payment for above standard or overtime services (for the period commencing with the Effective Datebut which amounts shall not be treated as Reimbursable Payments if already included in a Tenant’s Base Rents); and “Rents”: all amounts due and owing from Tenants, however characterized, including, without limitation, Base Rents, Overage Rents and Reimbursable Payments.
Appears in 1 contract
Sources: Sale Purchase Agreement (American Realty Capital New York Recovery Reit Inc)
Apportionments. The terms and provisions (a) At each Closing, the following items shall, with respect to the Properties being transferred, be apportioned between THCI (which, for purposes of this Section 2.7 2.07(a), shall apply with respect to each of the Real Properties set forth on Schedule 2.7 (eachinclude THCI and, a “Golf Course Property” and collectivelyas applicable, the “Golf Course Properties”).
(aTHCI Subsidiaries) The prorations and apportionments (the “Apportionments”) hereunder for each Golf Course Property Acquirors on a per diem basis, so that THCI shall be jointly prepared by OpCo responsible for those items of expense and REIT credited with those items of income that are attributable to the period prior to the Applicable Closing Date and the Acquirors shall be responsible for those items of expense and credited with those items of income that are attributable to the period on or before after the Effective Date on the basis of actual Applicable Closing Date: rents (including without limitation ground lease rent (if applicable), base rent, common area maintenance reimbursements, marketing fund contributions, operating expense and estimated amounts as provided in Section 2.7(btax reimbursements, percentage rent and other additional rent) of this Agreement. In the event any Apportionments made under this Agreement shall prove (collectively "RENTS"); prepaid and accrued expenses (including, without limitation, interest, ground rent, utility charges, water and sewer charges (unless such payment is to be incorrect made directly by any tenant), fees for any reasonlicenses and permits, then either party shall be entitled to an adjustment to correct the same during the ninety (90) day period after the Effective Date. To the extent it shall be determined that a party was initially allocated any amount of the Apportionments in excess of the amount to which it is entitled hereunderfuel, such party shall remit such excess amount to the other party within ten (10) days after such determination. The Apportionmentssteam, as adjusted, if applicable, during said ninety (90) day period shall be conclusive gas and binding on OpCo and REIT.
(b) The following shall be apportioned as of the close of business on the day immediately preceding the Effective Date:
(i) real property taxes, sewer taxes and rents, vault taxes and any other governmental taxes and charges levied or assessed against the applicable Golf Course Property or the use thereof, on the basis of the respective fiscal years for which each is assessed;
(ii) water rates and electricity charges, unless the direct responsibility of any tenant of the applicable Golf Course Property;
(iii) annual license, permit and inspection fees, if any;payments under reciprocal easement agreements and payments to merchants associations and/or promotional funds maintained by THCI, and obligations under the Contracts assumed by the Acquirors; and real and personal ad valorem and other taxes and assessments ("AD VALOREM TAXES") against such Property; PROVIDED that:
(i) If the Ad Valorem Taxes for the tax year in which the Applicable Closing occurs are not known or cannot reasonably be estimated, they shall be adjusted based on an estimate obtained using the then current assessed value of such Property as of the Applicable Closing Date and the tax rate and multiplier reflected by the most recent Ad Valorem Taxes due. After the Ad Valorem Taxes for the year in which the Applicable Closing occurs are known, adjustments shall be made between the parties.
(ii) THCI shall have the right to control all tax certiorari and tax reduction proceedings relating to Properties conveyed (or the Properties associated with the Partnership Interests transferred) for tax years prior to and including the tax year in which the Applicable Closing Date occurs and shall keep the Acquirors informed with respect thereto. Any tax refund or credit obtained by THCI (net of any costs of obtaining such refund) attributable (A) to the period prior to the tax year in which the Applicable Closing Date occurs shall be paid, FIRST, to any tenants of the Properties entitled thereto and, SECOND, to THCI and (B) to the tax year in which the Applicable Closing Date occurs shall be apportioned between THCI and the Acquirors, with the portion allocable to THCI to be applied as provided in clause (A) and the balance paid to the Acquirors, subject, however, to the rights of tenants of the Properties entitled thereto. With respect to any proceeding in respect of a tax year in which the Applicable Closing Date occurs, THCI shall coordinate its efforts with the Acquirors, shall keep the Acquirors informed with respect thereto and shall not settle the same without the consent of the Acquirors, which consent shall not be unreasonably withheld or delayed. From and after the expiration of the tax year in which the Applicable Closing Date occurs, the Acquirors shall have the right to control all tax certiorari and tax reduction proceedings relating to Properties conveyed for tax years commencing with the tax year following the tax year in which the Applicable Closing Date occurs.
(iii) The Acquirors shall take all steps necessary to effectuate the transfer of all utilities to an Acquiror's name as of the Applicable Closing Date and, where necessary, the Acquirors shall post deposits with the utility companies. THCI shall pay all utility charges accruing prior to the Applicable Closing Date and all utilities thereafter shall be paid for by the Acquirors. THCI shall be entitled to recover any and all deposits held by utility companies as of the Applicable Closing Date. To the extent that the Acquirors fail to make, where required, deposits to any such utility companies (or to make any deposits with other service providers) so as to prevent the timely release of THCI's deposits by the utility companies (or such other service providers) on the Applicable Closing Date, the aggregate amount of such deposits shall be credited to THCI. In such event, THCI's deposits shall be assigned to an Acquiror, which shall have the right to have the deposits released to it upon satisfaction of the conditions imposed by the utility companies (or such other service providers).
(iv) fuel (as estimated by OpCo’s supplierTHCI shall, at OpCo’s costthe Applicable Closing, together with sales tax) and steam, gas, electricity charges and all other utilities which are supplied credit the Acquirors for any Rents paid to THCI by the applicable Golf Course Property (except to the extent the same are the direct responsibility of any tenant tenants of the applicable Golf Course Property);
(v) rents and all other charges (including reimbursement payments) payable under any lease with a tenant of the applicable Golf Course Property as and when collected; provided, however, that if any rents under any leases shall be accrued and unpaid at the Effective Date, the rents collected by REIT on or after the Effective Date shall first be applied to all rents due and payable for the calendar month in which the Effective Date occurs; next to all rent due OpCo and payable for the month immediately preceding the calendar month in which the Effective Date occurs; next to all rents due and payable at the time of such collection with respect to the period beginning on the Applicable Closing Date. No proration shall be made for Rents from tenants that are delinquent as of the Applicable Closing Date (the "TENANT DELINQUENT RENTS"). All Tenant Delinquent Rents collected on or after the calendar month in which the Effective Applicable Closing Date occurs; and the balance shall be applied allocated, FIRST, to the extent of delinquent rents for then current month, NEXT, to any other delinquency after the Applicable Closing Date, and, FINALLY, to any other delinquency prior to the Applicable Closing Date. Any Tenant Delinquent Rents collected by the Acquirors after the Applicable Closing which are allocable to the period prior to the month immediately preceding the calendar month in which the Effective Applicable Closing Date occurs. Any sums received by REIT to which OpCo is entitled shall be held in trust and forthwith paid by the Acquirors to THCI subject to and in accordance with the foregoing allocation provision. The Acquirors shall use their commercially reasonable efforts to collect all Tenant Delinquent Rents (other than the Tenant Delinquent Rents described in clause (e) of the definition of Excluded Property Assets), but in no event shall the Acquirors be obligated to commence legal proceedings for OpCo collection against any tenant. All rights to pursue collection of Tenant Delinquent Rents (other than the Tenant Delinquent Rents described in clause (e) of the definition of Excluded Property Assets) shall vest solely in the Acquirors. Any Rents paid to THCI by the tenants of the applicable Property on or after the Applicable Closing Date, other than Tenant Delinquent Rents described in clause (e) of the definition of Excluded Property Assets, shall be held in trust and forthwith paid by THCI to the Acquirors (subject, however, to the allocation of the same as set forth above). At the Applicable Closing, THCI shall deliver to the Acquirors a written certification identifying any Tenant Delinquent Rents.
(v) All percentage rents for tenants' annual sales reporting periods (as defined in the tenant leases) ending prior to the Applicable Closing Date, including tenant leases terminated before the Applicable Closing, shall belong solely to THCI. Any percentage rent paid with respect to any tenant's annual sales reporting period that is in effect on the Applicable Closing Date (the "CURRENT REPORTING PERIOD") shall be adjusted by and between THCI and the Acquirors as hereinafter described. Percentage rent earned during each tenant's Current Reporting Period shall be prorated on the basis of the number of days in such annual sales reporting period that the Applicable Property was owned by THCI or the Acquirors and payments of THCI's share shall be made by the Acquirors following the end of the applicable sales reporting period, PROVIDED that (i) there shall be deducted from the amounts payable to THCI hereunder with respect to any tenant any sums previously collected by THCI from such tenant on account of said past due rents payable percentage rent for the Current Reporting Period and (ii) if it shall be determined by the parties that THCI has collected more than its share of the percentage rent from such tenant, THCI shall immediately pay over the surplus to OpCo, and REIT shall remit any such sums to OpCo within ten (10) days after receipt thereofthe Acquirors. OpCo agrees that if OpCo receives any amounts after After the Effective Date which are attributable, in whole or in part, to any period after the Effective Applicable Closing Date, OpCo the Acquirors shall remit deliver to REIT that portion THCI monthly status reports detailing collections of percentage rents for the monies so received by OpCo to which REIT is entitled within ten (10) days after receipt thereof;Current Reporting Period.
(vi) All security deposits (including any interest thereon to the extent payable to the applicable tenants) not theretofore properly applied to obligations under the applicable leases shall be delivered by THCI to the Acquirors at the Applicable Closing, or, in the alternative, THCI may elect to give the Acquirors a credit in the amount of such security deposits. THCI shall either assign its rights under all letters of credit security deposits to the Acquirors or, if any such letters of credit are not assignable, shall cooperate with the Acquirors in arranging for the transfer thereof to the Acquirors, and, pending such transfer, THCI shall act as the Acquirors' agent in presenting any draws under, and in otherwise administering such letters of credit.
(vii) [INTENTIONALLY OMITTED]
(viii) THCI shall receive a credit for all reserves, deposits and escrows for taxes, insurance, interest, capital expenditures, tenant improvements, claims and any other reserves, deposits and escrows on deposit with any lender with respect to any indebtedness assumed by the Acquirors (or to which the Acquirors take subject) or any other Person other than any of the foregoing that is held (A) by insurers or (B) by Teachers as security for capital improvement obligations that remain unsatisfied as of the Applicable Closing Date.
(ix) THCI's insurance policies on the applicable Property shall not be assumed by the Acquirors, but shall be canceled effective as of the Applicable Closing Date. The amount of the refunds payable to THCI in respect of such early cancellation of insurance policies on the applicable Property shall be the property of THCI. The Acquirors shall purchase and place their own insurance on the applicable Property as of Applicable Closing Date.
(x) Common area maintenance reimbursements and charges and payments payable under any service contracts in effect leases at the applicable Property with respect to the 1998 calendar year shall initially be apportioned between the parties at the Applicable Closing based on the 1998 budgeted amounts of common area maintenance reimbursement and other charges for such Property and on the number of days THCI owned the applicable Golf Course Property; andProperty during the 1998 calendar year. THCI shall prepare a statement showing the amounts collected from the tenants in respect of common area maintenance reimbursements and charges for the portion of the 1998 calendar year prior to the Applicable Closing Date, and shall furnish a copy of such statement to the Acquirors. To the extent the amount owing to THCI attributable to the portion of the 1998 calendar year prior to the Applicable Closing Date determined by means of such estimate shall be more than the amounts collected by THCI in respect of such 1998 calendar year common area maintenance reimbursements and charges, then the difference will be paid by the Acquirors to THCI at the Applicable Closing. To the extent the amount owing to THCI attributable to the portion of the 1998 calendar year through the Applicable Closing Date determined by means of such estimate shall be less than the amounts collected by THCI in respect of such 1998 calendar year common area maintenance reimbursements and charges, then the difference will be paid by THCI to the Acquirors at the Applicable Closing. A final recalculation of the actual amounts payable for common area maintenance reimbursements and other charges shall be made within 120 days after the end of the 1998 calendar year.
(viixi) The Acquirors shall receive a credit for unpaid tenant allowances (which shall include tenant improvement allowances, landlord contributions, lease takeover obligations and other payments to or for the benefit of tenants and periods of free rent after the Applicable Closing Date) and lease commissions applicable to all other income from leases at the Property that were executed and expense relating delivered prior to the applicable Golf Course date of this Agreement (other than in connection with renewals or extensions, exercised or executed after the date of this Agreement, of leases executed on or prior to the date of this Agreement), the Acquirors shall assume all responsibility for the payment of such tenant allowances and lease commissions and all of the same shall constitute Assumed Property Liabilities.
(xii) Amounts subject to redemption under gift certificates issued by THCI prior to the Applicable Closing Date and still outstanding as of every type the Applicable Closing shall be described in a schedule prepared by THCI and nature as is customary with delivered to the closing Acquirors at the Applicable Closing. At the Applicable Closing, the aggregate amount of a commercial property transaction such issued and outstanding scheduled gift certificates shall be deposited in the city bank accounts maintained by THCI and state to be transferred over to the Acquirors at the Applicable Closing, to fund the redemption of such scheduled gift certificates. The Acquirors shall assume all liability for the redemption of such scheduled gift certificates.
(xiii) To the extent that the interest being transferred in which a Property at any Applicable Closing is an interest in a Partnership, the amounts to be apportioned hereunder shall be adjusted to reflect the amounts that THCI would receive or pay if such items of income or expense were paid by the applicable Golf Course Property is locatedowner of the Property.
(b) At each Applicable Closing, the net credit to THCI or the Acquirors, as applicable, resulting from the apportionments made pursuant to subsection (a) of this Section 2.07 for all Properties being transferred on such Applicable Closing Date shall be paid to THCI or the Acquirors, as applicable, by wire transfer of immediately available funds to a bank account or accounts designated by THCI or the Acquirors, such notice to be delivered not later than the second Business Day prior to such Applicable Closing Date.
(c) If In the event that any refund amounts to be prorated pursuant to Section 2.07(a) have not been finally determined on the Applicable Closing Date, a mutually satisfactory estimate of real property taxes such amounts made on the basis of THCI's records or assessments, water rates and charges or sewer taxes and rents public records shall be made after used as a basis for settlement at the Effective Date and is received by REIT or OpCo, the same shall be held in trust by the receiving party, and shall first be applied to the unreimbursed costs incurred in obtaining the sameApplicable Closing, and the balanceamounts finally determined will be prorated as of the Applicable Closing Date and appropriate settlement made as soon as practicable after such final determination, but in no event later than 120 days after the later of (i) the last day in the calendar year in which the Applicable Closing Date occurs or (ii) the last day of the Current Reporting Period that is the last Current Reporting Period to expire.
(d) At the Initial Closing, the current assets and current liabilities of the Management Company shall be estimated in good faith by THCI, and THCI shall pay to the Acquirors the excess, if any, of such current liabilities over such current assets, or the Acquirors shall pay to THCI the excess, if any, of such current assets over such current liabilities. To the extent not known on the Initial Closing Date, the current assets and current liabilities shall be paid estimated on the best available information at the time and appropriate settlement made from time to OpCo (for time as the period prior to the Effective Date) and to REIT (for the period commencing with the Effective Date)same are liquidated.
Appears in 1 contract
Apportionments. (a) Real estate charges and assessments (other than Taxes addressed in Section 6.8(a)) affecting the Real Property, water and sewer rentals, prepaid license fees and other charges for licenses and permits with respect to the operation of the Real Property, municipal rubbish removal charges and other similar charges shall be apportioned pro rata between the Seller and the Purchaser on a per diem basis as of the Closing Date. If bills for such charges have not been issued as of the Closing Date, and if the amount of such charges for the then current year is not then known, the apportionment of such charges shall be made at Closing on the basis of the prior year's charges. After the Closing, upon receipt of the bills for the current year, the Seller and the Purchaser shall apportion the actual amount of such charges, and, if either party paid more than its proper share thereof at the Closing, the other party shall promptly reimburse such party for the amount so expended. The terms and provisions of this Section 2.7 2.8(a) shall apply with respect to each of survive the Real Properties set forth on Schedule 2.7 (each, a “Golf Course Property” and collectively, the “Golf Course Properties”).
(a) The prorations and apportionments (the “Apportionments”) hereunder for each Golf Course Property shall be jointly prepared by OpCo and REIT on or before the Effective Date on the basis of actual and estimated amounts as provided in Section 2.7(b) of this Agreement. In the event any Apportionments made under this Agreement shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same during the ninety (90) day period after the Effective Date. To the extent it shall be determined that a party was initially allocated any amount of the Apportionments in excess of the amount to which it is entitled hereunder, such party shall remit such excess amount to the other party within ten (10) days after such determination. The Apportionments, as adjusted, if applicable, during said ninety (90) day period shall be conclusive and binding on OpCo and REITClosing.
(b) The following Seller shall use commercially reasonable efforts to cause, not more than five Business Days prior to the Closing Date, to the extent reasonably practical, all meters measuring the consumption of water, gas, steam, electricity or other utilities to be read, and the apportionment to be made on account of such utilities pursuant to this Section 2.8 shall be apportioned as of made pursuant to such readings (with a reasonable adjustment to bring down such readings to the close of business on the day midnight immediately preceding the Effective Closing Date:
(i) real property taxes, sewer taxes and rents, vault taxes and any other governmental taxes and charges levied on a per diem basis with respect to the days elapsed through the Closing Date as related to the fiscal year or assessed against the applicable Golf Course Property or the use thereof, on the basis billing period of the respective fiscal years authority, utility or other person levying or charging for which each is assessed;
(ii) water rates and charges, unless the direct responsibility of any tenant of the applicable Golf Course Property;
(iii) annual license, permit and inspection fees, if any;
(iv) fuel (as estimated by OpCo’s supplier, at OpCo’s cost, together with sales tax) and steam, gas, electricity charges and all such utilities or other utilities which are supplied to the applicable Golf Course Property (except to the extent the same are the direct responsibility of any tenant of the applicable Golf Course Property);
(v) rents and all other charges (including reimbursement payments) payable under any lease with a tenant of the applicable Golf Course Property as and when collecteditems; provided, however, that that, if any rents under any leases shall and to the extent meter readings cannot be accrued and unpaid at obtained prior to the Effective Closing Date, the rents collected Closing shall be completed on the basis of estimates therefor prepared by REIT on or the applicable utility company, and after the Effective Date Closing, when such meter readings have been obtained, if either party paid more than its proper share thereof at the Closing, the other party shall first be applied to all rents due and payable promptly reimburse such party for the calendar month in which amount so expended. The provisions of this Section 2.8(b) shall survive the Effective Date occurs; next to all rent due OpCo and payable for the month immediately preceding the calendar month in which the Effective Date occurs; next to all rents due and payable at the time of such collection with respect to the period after the calendar month in which the Effective Date occurs; and the balance shall be applied to the extent of delinquent rents for the period prior to the month immediately preceding the calendar month in which the Effective Date occurs. Any sums received by REIT to which OpCo is entitled shall be held in trust for OpCo on account of said past due rents payable to OpCo, and REIT shall remit any such sums to OpCo within ten (10) days after receipt thereof. OpCo agrees that if OpCo receives any amounts after the Effective Date which are attributable, in whole or in part, to any period after the Effective Date, OpCo shall remit to REIT that portion of the monies so received by OpCo to which REIT is entitled within ten (10) days after receipt thereof;
(vi) all charges and payments under any service contracts in effect with respect to the applicable Golf Course Property; and
(vii) all other income from and expense relating to the applicable Golf Course Property of every type and nature as is customary with the closing of a commercial property transaction in the city and state in which the applicable Golf Course Property is locatedClosing.
(c) If any refund All amounts of real property taxes or assessmentsrent, water rates additional rent paid and other charges or sewer taxes and rents shall be made after apportioned on a per diem basis as of the Effective Date and is received by REIT or OpCo, Closing Date. The provisions of this Section 2.8(c) shall survive the same shall be held in trust by the receiving party, and shall first be applied to the unreimbursed costs incurred in obtaining the same, and the balance, if any, shall be paid to OpCo (for the period prior to the Effective Date) and to REIT (for the period commencing with the Effective Date)Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Mine Safety Appliances Co)
Apportionments. The terms and provisions of this Section 2.7 shall apply with respect to each of the Real Properties set forth on Schedule 2.7 (each, a “Golf Course Property” and collectively, the “Golf Course Properties”).
(a) The prorations and apportionments (the “Apportionments”) hereunder for each Golf Course Property shall be jointly prepared by OpCo and REIT on or before the Effective Date on the basis of actual and estimated amounts as provided in Section 2.7(b) of this Agreement. In the event any Apportionments made under this Agreement shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same during the ninety (90) day period after the Effective Date. To the extent it shall be determined that a party was initially allocated any amount of the Apportionments in excess of the amount to which it is entitled hereunder, such party shall remit such excess amount to the other party within ten (10) days after such determination. The Apportionments, as adjusted, if applicable, during said ninety (90) day period shall be conclusive and binding on OpCo and REIT.
(b) The following shall be apportioned and/or addressed between Seller and Purchaser at the Closing as of the close 11:59 p.m. of business on the day immediately preceding the Effective Date:
Closing Date (the "Cut-Off Time"): (i) real property taxesProperty Taxes, assessments billed together with Property Taxes, water charges, sewer taxes rents and rentsvault charges, vault taxes and any other governmental taxes and charges levied or assessed against the applicable Golf Course Property or the use thereofif any, on the basis of the respective fiscal years years, respectively, for which each is same have been assessed;
; (ii) water rates charges and charges, unless payments under the direct responsibility of any tenant of the applicable Golf Course Property;
Contracts or permitted renewals or replacements thereof assumed by Purchaser; (iii) any prepaid items, including, without limitation, fees for Licenses which are transferred to Purchaser at the Closing and annual license, permit and inspection fees; (iv) utilities, including, without limitation, telephone, steam, electricity and gas, on the basis of the most recently issued bills therefor, subject to adjustment after the Closing when the next bills are available, or if current meter readings are available, on the basis of such readings; (v) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with Property if same are assigned to Purchaser at the Closing, which shall be credited in their entirety to Seller; (vi) trade association dues and trade subscriptions, if any;
; and (ivvii) fuel (such other items as estimated by OpCo’s supplier, at OpCo’s cost, together with sales tax) are customarily apportioned between sellers and steam, gas, electricity charges and all other utilities which are supplied purchasers of real properties of a type similar to the applicable Golf Course Property (except to and located in the extent the same are the direct responsibility of any tenant of the applicable Golf Course Property);
(v) rents and all other charges (including reimbursement payments) payable under any lease with a tenant of the applicable Golf Course Property as and when collected; provided, however, that if any rents under any leases shall be accrued and unpaid at the Effective Date, the rents collected by REIT on or after the Effective Date shall first be applied to all rents due and payable for the calendar month jurisdiction in which the Effective Date occurs; next to all rent due OpCo and payable for the month immediately preceding the calendar month in which the Effective Date occurs; next to all rents due and payable at the time of such collection with respect to the period after the calendar month in which the Effective Date occurs; and the balance shall be applied to the extent of delinquent rents for the period prior to the month immediately preceding the calendar month in which the Effective Date occurs. Any sums received by REIT to which OpCo is entitled shall be held in trust for OpCo on account of said past due rents payable to OpCo, and REIT shall remit any such sums to OpCo within ten (10) days after receipt thereof. OpCo agrees that if OpCo receives any amounts after the Effective Date which are attributable, in whole or in part, to any period after the Effective Date, OpCo shall remit to REIT that portion of the monies so received by OpCo to which REIT is entitled within ten (10) days after receipt thereof;
(vi) all charges and payments under any service contracts in effect with respect to the applicable Golf Course Property; and
(vii) all other income from and expense relating to the applicable Golf Course Property of every type and nature as is customary with the closing of a commercial property transaction in the city and state in which the applicable Golf Course Property is located.
(cb) If any refund the Closing shall occur before a new Property Tax rate is fixed, the apportionment of real property taxes or assessments, water rates and charges or sewer taxes and rents Property Taxes at the Closing shall be made after upon the Effective Date and is received by REIT or OpCo, basis of the same shall be held in trust by old tax rate for the receiving party, and shall first be preceding fiscal year applied to the unreimbursed costs incurred latest assessed valuation.
(c) At Closing, Purchaser shall purchase all unopened food and beverage inventory from Seller at Seller's actual cost.
(d) If as of the Closing Date the Property or any part thereof shall be affected by any assessment or assessments other than Property Taxes, which are or may become payable in obtaining installments, but which are not included on the sameProperty Tax ▇▇▇▇, of which the first installment is a charge or lien, then (A) Seller shall be obligated to pay all installments of any such assessment which are due and payable prior to the Closing Date, and (B) for the balancepurposes of this Agreement, all the unpaid installments of any such assessment which are to become due and payable on or after the Closing Date shall not be deemed to be liens upon Property and the payment thereof shall be assumed by Purchaser without abatement of the Purchase Price.
(e) Effective as of the Closing Date, Seller shall (or cause Manager to) terminate Seller's employer/employee relationship, if any, with all persons employed (the "Hotel Employees") at the Property (and wages of such employees working as of the Cut-Off Time will be prorated as of the end of their respective 8-hour shifts with all such wages before the Cut-Off Time for account of Seller and all wages from and after the Cut-Off Time for account of Purchaser). As of the Closing Date, Purchaser will hire or will cause its manager to hire a sufficient number of the Hotel Employees to prevent from occurring an event requiring notice under the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2101 et seq.) or similar state or local statutes, if any (collectively, "WARN"). Purchaser agrees to be responsible for and hereby indemnifies and agrees to hold Seller, Manager and their affiliates harmless from and against claims and liabilities arising from violations by Purchaser of its obligations hereunder that create any liability under WARN.
(f) At Closing, Seller shall be paid provide, or shall cause the Manager to OpCo provide, Purchaser with a schedule (the "Seller's Accounts Receivable Schedule") of all guest room, food, beverage and other charges (including, without limitation, telephone and other items charged to transient guests, parking charges, revenues arising from telephone booths, coin-operated laundry equipment, vending machines and games, check rooms, and any and all other charges and revenues relating to goods and services provided by Seller or Manager in connection with Property) owing to Seller for services rendered and any payments due or payable or credits receivable with respect to the operation of Property for any period prior to the Effective DateClosing Date (collectively "Seller's Accounts Receivable"). Purchaser shall purchase all of Seller's Accounts Receivable from Seller that are no older than fifteen (15) days past due at Closing. Purchaser shall use reasonable efforts to collect Seller's Accounts Receivable that were more than fifteen (15) days past due as of the Closing Date on behalf of Seller (without any obligation on the part of Purchaser to (i) undertake litigation to collect such amounts due to Seller or (ii) expend funds), and Purchaser shall deliver to Seller, in accordance with this Section 1.4, any collected accounts receivable that belong to Seller. Purchaser's repayment obligations set forth in this Section shall survive Closing for a period of six (6) months.
(g) All deposits or advances from guests or others on account of advance bookings or reservations, and prepaid commissions received by Seller (or the Manager) from credit and referral organizations, for periods from and after the Closing Date (collectively, the "Advance Booking Deposits") shall be turned over to Purchaser at Closing and Purchaser agrees to honor the bookings related thereto and related to the Hotel after Closing. (h) With respect to the following items, all such items accruing prior to 12:01 AM on the Closing Date shall belong to Seller, and all such items accruing from and after 12:01 AM on the Closing Date shall belong to Purchaser: (i) charges to transient guests for rooms, food, beverage, telephone and other charges (it being the intent that Seller retains the final night room revenue); (ii) revenues, if any, arising from telephone booths, vending machines (including coin-operated laundry equipment) and check rooms; and (iii) such other items as are customarily treated in this manner upon the sale of similar hotel businesses (except as otherwise specifically provided herein).
(i) As of the Cut-Off Time, Seller and Purchaser shall determine the amount of all cash on hand money then held in connection with the operation of the hotel at Property for use as house banks, and all other cash, cash equivalents, deposits and accounts relating to REIT the operation of the Hotel, whether in the possession of Seller or Manager, and (except as to Advance Booking Deposits) the aggregate amount thereof shall be purchased by Purchaser.
(j) Subject to Purchaser's obligation pursuant to Section 1.4(c) above, Seller shall be responsible for payments of amounts owing to third parties in respect of inventory and supplies ordered by Seller in respect of the Property prior to the Closing Date to the extent such items have been delivered to the Property prior to the Closing Date. To the extent the same are delivered to the Property on or after the Closing Date, Purchaser shall be responsible for payment of the same. (k) Purchaser, at Purchaser's sole expense, shall be responsible for the period commencing with transfer or acquisition of accounts and licenses (including liquor licenses, if transferable) regarding the Effective Date)Property, and the establishment of all utility services to the Property, in the name of Purchaser as of Closing. Such transfers or acquisitions shall not be a condition or requirement of Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Apportionments. The terms and provisions of this Section 2.7 shall apply with respect to each of the Real Properties set forth on Schedule 2.7 (each, a “Golf Course Property” and collectively, the “Golf Course Properties”).
(a) The prorations and apportionments (the “Apportionments”) hereunder for each Golf Course Property shall be jointly prepared by OpCo and REIT on or before the Effective Date on the basis of actual and estimated amounts as provided in Section 2.7(b) of this Agreement. In the event any Apportionments made under this Agreement shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same during the ninety (90) day period after the Effective Date. To the extent it shall be determined that a party was initially allocated any amount of the Apportionments in excess of the amount to which it is entitled hereunder, such party shall remit such excess amount to the other party within ten (10) days after such determination. The Apportionments, as adjusted, if applicable, during said ninety (90) day period shall be conclusive and binding on OpCo and REIT.
(b) The following shall be apportioned between Seller and Purchaser as of the close of business 11:59 p.m. on the day immediately preceding the Effective Closing Date (the “Apportionment Date”) on the basis of the actual number of days of the month which shall have elapsed as of the Closing Date and based upon the actual number of days in the month and a 365-day year:
(i) subject to Section 6(b), prepaid rents, fixed rents and any other amounts payable by tenants to Seller pursuant to the Leases (including, without limitation, operating expense escalation payments, real property estate tax escalation payments and percentage rent, if any, payable under the Leases) (collectively, “Rents”);
(ii) real estate taxes, sewer taxes rents and rentstaxes, water rates and charges (to the extent not accounted for pursuant to clause (i) above), vault taxes charges and taxes, business improvement district taxes, and other real estate assessments and any other governmental taxes and taxes, charges or assessments levied or assessed against the applicable Golf Course Premises (collectively, “Property or the use thereofTaxes”), on the basis of the respective fiscal years periods for which each is assessed;
(ii) water rates and chargesassessed or imposed, unless the direct responsibility of any tenant of the applicable Golf Course Propertyto be apportioned in accordance with Section 6(c);
(iii) annual license, permit and inspection feesadministrative charges, if any, permitted under the Leases or applicable law, on security deposits held pursuant to the Leases;
(iv) fuel (supplied for the Building, if any, as estimated by OpCoSeller’s supplier, at OpCo’s current cost, together with any sales tax) and steamtaxes payable in connection therewith, gas, electricity charges and all other utilities which are supplied if any (a letter from Seller’s fuel supplier shall be conclusive evidence as to the applicable Golf Course Property (except to quantity of fuel on hand and the extent the same are the direct responsibility of any tenant of the applicable Golf Course Propertycurrent cost therefor);
(v) rents prepaid fees for licenses and all other charges (including reimbursement payments) payable under any lease with a tenant of the applicable Golf Course Property as and when collected; provided, however, that if any rents under any leases shall be accrued and unpaid permits assigned to Purchaser at the Effective Date, the rents collected by REIT on or after the Effective Date shall first be applied to all rents due and payable for the calendar month in which the Effective Date occurs; next to all rent due OpCo and payable for the month immediately preceding the calendar month in which the Effective Date occurs; next to all rents due and payable at the time Closing (it being understood that evidence of such collection with respect prepayment must be provided to the period after the calendar month in which the Effective Date occurs; and the balance shall be applied to the extent of delinquent rents for the period prior to the month immediately preceding the calendar month in which the Effective Date occurs. Any sums received by REIT to which OpCo is entitled shall be held in trust for OpCo on account of said past due rents payable to OpCo, and REIT shall remit any such sums to OpCo within ten (10) days after receipt thereof. OpCo agrees that if OpCo receives any amounts after the Effective Date which are attributable, in whole or in part, to any period after the Effective Date, OpCo shall remit to REIT that portion of the monies so received by OpCo to which REIT is entitled within ten (10) days after receipt thereofPurchaser);
(vi) all charges any amounts prepaid or payable under the Assumed Contracts and, if Purchaser elects to assume the Property Management Agreement, the Property Management Agreement;
(vii) electricity, water, gas, steam, telephone, internet, cable or satellite television and payments under any service contracts other utilities, at the rates most recently charged to Seller, plus sales taxes thereon, except to the extent required to be paid by tenants pursuant to Leases in effect as of the Closing Date directly to the entity imposing same;
(viii) all other operating expenses and income with respect to the applicable Golf Course PropertyProperty which are customarily apportioned;
(ix) any amounts prepaid or payable under the Ground Lease;
(x) any amounts prepaid or payable under the Airspace Lease; and
(viixi) all such other income from and expense relating to the applicable Golf Course Property items as are customarily apportioned in real estate closings of every type and nature as is customary with the closing of a commercial property transaction properties in the city and state in which the applicable Golf Course Property is locatedSeattle, Washington area.
(ci) If any refund of real property taxes or assessmentsMonthly base rents (collectively, water rates and charges or sewer taxes and rents “Base Rents”) under the Leases shall be made adjusted and prorated on an if, as and when collected basis. Base Rents collected by Purchaser or Seller after the Effective Closing Date and is received by REIT or OpCo, the same shall be held in trust by the receiving party, and shall first be applied to the unreimbursed costs incurred in obtaining the same, and the balance, if any, shall be paid to OpCo (from tenants who owe Base Rents for the period periods prior to the Effective Closing Date, shall, after first deducting Purchaser’s actual out-of-pocket costs of collection, if applicable, be applied, (A) first, to Base Rents attributable to periods from and to REIT (for the period commencing with the Effective Date).after Closing and
Appears in 1 contract
Sources: Purchase and Sale Agreement
Apportionments. The terms (a) On the Closing Date and provisions as of this Section 2.7 the Effective Time, Purchaser and Seller shall apply apportion the following obligations, expenses and prepayments with respect to each of the Owned Real Properties set forth on Schedule 2.7 Property, Leased Real Property, Business and Assets (eachsubject to subsequent adjustment pursuant to Section 3.03(b)):
(i) the ad valorem taxes, a “Golf Course Property” assessments and fees (collectively, the “Golf Course Properties”).
(a) The prorations and apportionments (the “ApportionmentsReal Property Taxes”) hereunder for each Golf Course on such tax-year or fiscal-year basis or other period, as the case may be, as such Real Property shall Taxes may be jointly prepared by OpCo and REIT on levied or before the Effective Date assessed, estimated on the basis of actual the last available tax ▇▇▇▇, as set forth in the applicable Lease or Sublease;
(ii) if arrangements cannot be made for separate billing, any apportionable utility charges and estimated amounts as provided any other charges that are properly apportionable in Section 2.7(b) accordance with the terms of this Agreement. In ;
(iii) prepayments under the event Assigned Contracts assumed by Purchaser and any Apportionments made under this Agreement shall prove other prepayments exclusively related to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same during the ninety Restaurants (90) day period after the Effective Date. To the extent it shall be determined that a party was initially allocated any amount including prepaid marketing or other expenses as of the Apportionments in excess of the amount to which it is entitled hereunder, such party shall remit such excess amount to the other party within ten Closing); and
(10iv) days after such determination. The Apportionments, as adjustedpersonal property taxes, if applicable, during said ninety (90) day period shall be conclusive and binding on OpCo and REITany.
(b) The Not later than ninety (90) days following the Closing Date (or if such date is not a Business Day, the immediately-following Business Day), Seller shall be apportioned prepare and furnish to Purchaser a reconciliation that shall set forth the actual Inventory and Special Item amounts as of the close of business on Effective Time, the day immediately preceding the Effective Date:
(i) real property taxesactual amounts for items listed in Section 2.05(a)(ii), sewer taxes and rents, vault taxes and any other governmental taxes and charges levied or assessed against the applicable Golf Course Property or the use thereof, on the basis of the respective fiscal years for which each is assessed;
(ii) water rates and charges, unless the direct responsibility of any tenant of the applicable Golf Course Property;
(iii) annual license), permit and inspection fees, if any;
(iv) fuel and (v), hereof, and the proration of all obligations, expenses and prepayments in respect of the Restaurants as estimated of the Effective Time (including those contemplated by OpCo’s supplierSection 3.03(a) above). For the avoidance of doubt, at OpCo’s cost, together the Parties agree that Purchaser shall assume all construction and development obligations and liabilities with sales tax) and steam, gas, electricity charges and all other utilities which are supplied respect to the applicable Golf Course Property (except to the extent the same are the direct responsibility of any tenant Future Restaurants as of the applicable Golf Course Property);
(v) rents Effective Time, and all other charges (including reimbursement payments) payable under any lease with a tenant of the applicable Golf Course Property as and when collected; provided, however, that if any rents under any leases therefore Purchaser shall be accrued responsible for all costs of construction and unpaid development that are incurred at the Effective Date, the rents collected by REIT on or after the Effective Date shall first be applied to all rents due and payable for the calendar month in which the Effective Date occurs; next to all rent due OpCo and payable for the month immediately preceding the calendar month in which the Effective Date occurs; next to all rents due and payable at the time of such collection Time with respect to the period after Future Restaurants. Real Property Taxes and other taxes, and all other expenses and charges relating to the calendar month in which ownership and/or occupancy, as applicable, of the Effective Date occurs; Owned Real Property, Leased Real Property, and the balance Assets, shall be applied shared as set forth in the applicable Lease or Sublease. Purchaser shall review such reconciliation and shall notify Seller of any objections to the extent of delinquent rents for the period prior to the month immediately preceding the calendar month in which the Effective Date occurs. Any sums received by REIT to which OpCo is entitled shall be held in trust for OpCo on account of said past due rents payable to OpCo, and REIT shall remit any such sums to OpCo amounts shown within ten fifteen (1015) days after receipt thereofreceipt. OpCo agrees If such reconciliation provides that if OpCo receives Purchaser owes Seller any amounts after the Effective Date which are attributableamount, in whole or in part, then Purchaser shall pay such amount shown as owed to any period after the Effective Date, OpCo shall remit to REIT that portion of the monies so received by OpCo to which REIT is entitled Seller within ten thirty (1030) days after the later to occur of (i) receipt thereof;
by Purchaser of the reconciliation, or (viii) the resolution of all charges and payments under any service contracts in effect with respect objections timely raised by Purchaser to the applicable Golf Course Property; and
reconciliation. If such reconciliation provides that Seller owes Purchaser any amount, then Seller shall pay such amount shown as owed to Purchaser within thirty (vii30) days after the later to occur of (A) receipt by Purchaser of the reconciliation, or (B) the resolution of all other income from and expense relating objections timely raised by Purchaser to the applicable Golf Course Property of every type and nature as is customary with the closing of a commercial property transaction in the city and state in which the applicable Golf Course Property is locatedreconciliation.
(c) If any refund of real property taxes or assessments, water rates and charges or sewer taxes and rents shall be made after the Effective Date and is received by REIT or OpCo, the same shall be held in trust by the receiving party, and shall first be applied In addition to the unreimbursed costs incurred in obtaining the sameadjustments and payments contemplated above, Seller and the balance, if any, shall be paid Purchaser agree to OpCo (for the period prior make payments to the Effective Dateeach other on a timely basis with respect to amounts and adjustments not correctly ascertainable pursuant to Section 3.03(a) and Section 3.03(b) when the correct amount of any amounts to REIT (for the period commencing with the Effective Date)be adjusted or apportioned pursuant to this Section 3.03 are ascertained.
Appears in 1 contract