Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be increased, by: (i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date); (ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date); (iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date; (iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date; (v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date; (vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI); (vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and (viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms. (b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by: (i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable; (ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date; (iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date; (iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and (v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date); (vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and (vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, on customary terms. (c) The intent of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Date.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Prime Hospitality Corp), Sale and Purchase Agreement (Sholodge Inc)
Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, following items shall be increasedpaid, by:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amendedprorated, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. adjusted as of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);in the manner hereinafter set forth:
(viia) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or PrimeAll real estate Taxes, as applicable; and
(viii) any other charges well as Taxes assessed on each Terminal Inventory, due and owing on or fees customarily prorated before the Closing Date, all penalties and interest thereon, and all special assessments affecting the Terminals, whether payable in installments or not, shall be paid in full by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary termsSeller.
(b) The cash portion of the Purchase Price described in Section 6.1(a) Current real estate Taxes, assessments and the Development Site Purchase Price, as applicable, charges shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, prorated as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in upon the HPT Lease) shall be calculated based on tax year of the "Total Hotel Sales" (as defined in applicable taxing authority, without regard to when said Taxes are payable, so that the HPT Lease) for portion of current Taxes allocable to the current period from the beginning of such year to the Closing Date compared to "Base Total Hotel Sales" (as defined in shall be the HPT Lease) for responsibility of Seller and the similar period portion of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided current Taxes allocable to the Hotels for any period prior to 12:01 a.m. portion of such year from the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in end of such year shall be the jurisdiction in which the Real Property is situated, on customary termsresponsibility of Buyer.
(c) Seller shall be responsible for the cost of Terminals utilities up to Closing and Buyer shall be responsible for such costs thereafter.
(d) Buyer shall bear and pay all title insurance premiums and charges.
(e) All realty transfer fees, recording costs and transfer Taxes associated with the conveyance of the Real Property, the Improvements and the Personal Property will be shared equally by both Parties.
(f) Seller and Buyer shall each pay their own respective legal fees and expenses and the cost of performance of their respective obligations hereunder.
(g) All amounts due Seller under any assignable Non-Material or Revenue-Generating Contract shall be prorated as of the Closing Date upon the payment cycle established under such Non-Material or Revenue-Generating Contract so that the portion the amounts due Seller from the beginning of such payment cycle to the Closing Date will be credited to Seller at Closing.
(h) The Parties shall make all other adjustments necessary to effectuate the intent of the foregoing is to credit or charge, Parties as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting set forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Datein this Agreement.
Appears in 2 contracts
Sources: Terminals Sale and Purchase Agreement, Terminals Sale and Purchase Agreement (Global Partners Lp)
Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, following items shall be increasedpaid, by:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amendedprorated, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. adjusted as of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);in the manner hereinafter set forth:
(viia) All real estate Taxes as well as any utility deposits relating to Taxes assessed on the Assets which are transferred Personal Property, due and remain owing on deposit after or before the Closing for Date, all penalties and interest thereon, and all special assessments affecting the benefit of a Prime Subsidiary Terminal, whether payable in installments or Primenot, as applicable; and
(viii) any other charges or fees customarily prorated shall be paid in full by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary termsSeller.
(b) The cash portion of Current ad valorem Taxes including real estate Taxes, special assessments and charges for the Purchase Price described in Section 6.1(acurrent year (“Property Taxes”) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, allocated between Seller and Buyer as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in on the HPT Lease) basis of no applicable discount. The allocation shall be calculated based on the "Total Hotel Sales" (as defined in number of days that each party owns the HPT Lease) Terminal during the year of the sale. If the amount of such Property Taxes with respect to the Terminal for the current calendar year to in which the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read occurs has not been determined as of the Closing Date);
(vi) accrued but unpaid benefits due , then the Property Taxes with respect to employees the Terminal for the preceding calendar year, on the basis of no applicable discount, shall be used to calculate such allocations, with known changes in valuation applied. Seller’s allocated share of the Hotels who are hired by Prime or Property Taxes for the current year shall be credited to Buyer at Closing as a Prime Subsidiaryreduction in Purchase Price and Buyer shall assume the responsibility to pay the Property Taxes, as applicableunless Seller has already paid the current year’s Property Taxes, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which case Seller shall be credited at Closing as an increase in Purchase Price with Buyer’s allocated share of the Real Property is situatedTaxes. If -49- TERMINAL SALE AND PURCHASE AGREEMENT (ARCADIA) EXECUTION VERSION the actual amount of any such Property Taxes varies by more than Twenty Thousand Dollars ($20,000) from estimates used at the Closing to prorate such taxes, then the parties shall re-prorate such Property Taxes within ten (10) days following a request by either party based on customary termsthe actual amount of the tax bills.
(c) Seller shall be responsible for the cost of the Terminal’s utilities up to Closing and Buyer shall be responsible for such costs thereafter.
(d) Buyer shall bear and pay all title insurance premiums and charges.
(e) Buyer shall bear and pay all realty transfer fees, recording costs and Taxes associated with the conveyance of the Real Property, the Improvements and the Personal Property, except Taxes imposed by reason of capital or income of Seller. Seller and Buyer agree that no sales and use taxes will be reported in connection with the transfer of the Terminal to Buyer since such sale qualifies for an occasional sale exemption.
(f) Seller and Buyer shall each pay their own respective legal fees and expenses and the cost of performance of their respective obligations hereunder.
(g) All amounts due Seller under any assignable revenue-generating contract shall be prorated as of the Closing Date upon the payment cycle established under such revenue-generating contract so that the portion the amounts due Seller from the beginning of such payment cycle to the Closing Date will be credited to Seller at Closing.
(h) The Parties shall make all other adjustments necessary to effectuate the intent of the foregoing is to credit or charge, Parties as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting set forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Datein this Agreement.
Appears in 1 contract
Sources: Terminal Sale and Purchase Agreement (Sunoco Logistics Partners Lp)
Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, following items shall be increasedpaid, by:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amendedprorated, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. adjusted as of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);in the manner hereinafter set forth:
(viia) All real estate Taxes as well as any utility deposits relating to Taxes assessed on the Assets which are transferred Personal Property, due and remain owing on deposit after or before the Closing for Date, all penalties and interest thereon, and all special assessments affecting the benefit of a Prime Subsidiary Terminals, whether payable in installments or Primenot, as applicable; and
(viii) any other charges or fees customarily prorated shall be paid in full by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary termsSeller.
(b) The cash portion of Current ad valorem Taxes including real estate Taxes, special assessments and charges for the Purchase Price described in Section 6.1(acurrent year (“Property Taxes”) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, allocated between Seller and Buyer as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in on the HPT Lease) basis of no applicable discount. The allocation shall be calculated based on the "Total Hotel Sales" (as defined in number of days that each party owns the HPT Lease) Terminals during the year of the sale. If the amount of such Property Taxes with respect to any of the Terminals for the current calendar year to in which the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read occurs has not been determined as of the Closing Date);
(vi) accrued but unpaid benefits due , then the Property Taxes with respect to employees such Terminals for the preceding calendar year, on the basis of no applicable discount, shall be used to calculate such allocations, with known changes in valuation applied. Seller’s allocated share of the Hotels who are hired by Prime or Property Taxes for the current year shall be credited to Buyer at Closing as a Prime Subsidiaryreduction in Purchase Price and Buyer shall assume the responsibility to pay the Property Taxes, as applicableunless Seller has already paid the current year’s Property Taxes, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which case Seller shall be credited at Closing as an increase in Purchase Price with Buyer’s allocated share of the Real Property is situatedTaxes. If the actual amount of any such Property Taxes varies by more than Twenty Thousand Dollars ($20,000) from estimates used at the Closing to prorate such taxes, then the parties shall re-prorate such Property Taxes within ten (10) days following a request by either party based on customary termsthe actual amount of the tax bills.
(c) Seller shall be responsible for the cost of Terminals utilities up to Closing and Buyer shall be responsible for such costs thereafter.
(d) Buyer shall bear and pay all title insurance premiums and charges.
(e) Buyer shall bear and pay all realty transfer fees, recording costs and Taxes associated with the conveyance of the Real Property, the Improvements and the Personal Property, except Taxes imposed by reason of capital or income of Seller. Seller and Buyer agree that no sales and use taxes will be reported on any of the Terminals transferred to Buyer since such sale qualifies for an occasional sale exemption.
(f) Seller and Buyer shall each pay their own respective legal fees and expenses and the cost of performance of their respective obligations hereunder.
(g) All amounts due Seller under any assignable revenue-generating contract shall be prorated as of the Closing Date upon the payment cycle established under such revenue-generating contract so that the portion the amounts due Seller from the beginning of such payment cycle to the Closing Date will be credited to Seller at Closing.
(h) The Parties shall make all other adjustments necessary to effectuate the intent of the foregoing is to credit or charge, Parties as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting set forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Datein this Agreement.
Appears in 1 contract
Sources: Terminals Sale and Purchase Agreement (Sunoco Logistics Partners Lp)
Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, following adjustments shall be increased, bymade at the Closing:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives Taxes and assessments as set forth in Section 9 of ShoLodge and Prime on the Closing Date);this Contract.
(ii) any revenue generated by the operation A proration of the Hotels through collected rents (including, without limitation, payments or reimbursements for operating expenses, common area costs, insurance and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments personal property taxes), vending machine revenues (if any), utilities, and all other income and operating expenses relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes made between Seller and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read Buyer as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of , with Seller being responsible for the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge expenses and entitled to the seller in revenues accrued or applicable to the jurisdiction in which period before the Real Property is situatedClosing Date, and Buyer being responsible for the expenses and entitled to the revenues accrued or applicable to the period on customary termsor after the Closing Date.
(ciii) The intent If at any time any of the foregoing is amounts to credit be apportioned under this Section 10 C hereof cannot be calculated with complete precision because the amount or chargeamounts of one or more items included in such calculation are not then known, such calculations shall be made on the basis of a reasonable estimate by Seller and Buyer of the amount or amounts of the item or items in question, based upon the previous amounts paid therefore with respect to the Property, if any.
(iv) With respect to any rents (including without limitation reimbursement obligations for operating expenses, common area costs, insurance, or real estate and personal property taxes) for any given tenant, due but not paid as of the case may be, STI, Closing Date or becoming due after the Additional Hotel Subsidiaries, Southeast or Closing Date but pertaining to the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations period before the Closing Date and (collectively “Seller’s Tenant Reimbursements”), Buyer shall forward any such amounts received by Buyer directly to credit Seller, but all rent, including such reimbursement obligations, paid after the Closing Date, by or charge, as for any given tenant shall be credited first to amounts payable by said tenant with respect to the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations period on and after the Closing Date. At ClosingThe parties further agree with respect to Seller’s Tenant Reimbursements as follows:
a. Schedule 10 C attached hereto and incorporated herein contains a summary of Seller’s Tenant Reimbursements incurred during the 2004 calendar year and being billed to tenants during the 12-month period ending in February, STI2006.
b. Buyer shall not be liable to Seller for any failure of any tenant to pay any Seller’s Tenant Reimbursement, but shall use commercially reasonable efforts to collect such amounts, which efforts shall not include any obligation of Buyer to file suit or engage third parties to collect such amounts. The Assignment of Leases delivered to Buyer at the Additional Hotel Subsidiaries Closing shall reserve the right of Seller to collect Seller’s Tenant Reimbursements from tenants who fail to pay the same, but Buyer shall not be permitted to terminate leases or evict tenants.
c. The parties hereby agree to cooperate with each other and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments to exchange information necessary for Buyer to ▇▇▇▇ tenants for operating expense escalations for the period from 2005 calendar year and after to prorate such amounts between Buyer and Seller. Once such proration is determined, Seller’s portion shall constitute Seller’s Tenant Reimbursements subject to the Closing Dateterms of this Section 10 C (iv).
(v) Seller shall pay to Buyer the amount of all damage, escrow or security deposits collected or received by Seller with respect to any tenants of the Property, which must be repaid to any such tenants pursuant to any leases or any applicable statute, without deduction or set off.
Appears in 1 contract
Closing Adjustments. (a) The cash portion of Except as otherwise set forth hereinafter, if this Agreement is consummated the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, following items shall be increasedpaid, by:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amendedprorated, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception adjusted as of 11:59 p.m. on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord “Proration Date”) in the manner hereinafter set forth:
9.1 The following will be credited to ShoLodge or STI);
Purchaser as of the Proration Date: (viia) any utility deposits relating to the Assets which are transferred prepaid rent and remain on deposit after Closing additional rent paid for the benefit balance of a Prime Subsidiary or Prime, the month of Closing and for January 2006 as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller set forth in the jurisdiction in which the Real Property is situated, on customary terms.
Lease; (b) The all cash portion of security deposits required to have been deposited with Purchaser under the Purchase Price described in Section 6.1(aLease; and (c) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem accrued real estate taxes reasonably estimated by Purchaser.
9.2 Seller shall pay all expenses necessary to repair, operate and assessments relating to maintain the Real Subject Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid incurred up to the Closing Date).
9.3 Seller shall bear and pay one-half of the escrow fees, one-half of any New York style closing fee, one-half of the HPT Lease (includingstate and county transfer, if applicable, as amendeddocumentary, or pursuant stamp taxes on the sale contemplated hereunder and all release fees or, at Purchaser’s option, Seller shall allow Purchaser a credit therefor at Closing. Purchaser shall pay one-half the escrow fees, one-half of any New York style closing fee, and all costs of any title policies and the survey as well as all recording fees for the Warranty Deed, but not fees related to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account release of any period prior to 12:01 a.m. Seller’s mortgage(s). Seller and Purchaser shall each pay their respective legal fees and expenses and the cost of the Closing Date performance of each of its respective obligations hereunder (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services except if specifically provided to the Hotels for any period prior contrary herein).
9.4 All other items which are customarily prorated in transactions similar to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to transaction contemplated hereby and which were not heretofore in this Article 10 dealt with, will be read prorated as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(c) The intent of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Proration Date.
Appears in 1 contract
Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, following shall be increased, by:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime apportioned on the Closing Date);Statement against sums due Seller at Closing:
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate A. All taxes and assessments relating to the Real Property on account any installment of any period from special and after 12:01 a.m. of other assessments which have become a lien and are due and payable upon the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid Premises prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared shall be paid by Seller and proof of such payment shall be given to Purchaser prior to or at the Closing, or, at Seller's option, credit shall be given to Purchaser therefor. Current real property taxes shall be prorated as though paid in advance on the due date basis of the taxing authority on the basis of 365 day year; Seller shall be responsible for taxes up to the date of Closing and Purchaser shall be responsible for taxes on the day of Closing and thereafter.
B. All tenant security deposits, and other deposits of whatever nature and kind whatsoever, shall be assumed by Purchaser with credit therefor against sums due at Closing and after the execution date hereof, Seller shall not apply any security deposits to delinquent rentals without a court order or judgment granting Seller such right.
C. Current rents shall be prorated and adjusted as of the date of Closing based upon the actual number of days in the month of Closing, with Purchaser being credited for rents on the day of Closing and thereafter and all prepaid rents and Seller shall deliver all checks received by Seller which have not been deposited. In no event shall Purchaser be charged with any past due rentals and Seller's rights to receive all past due rentals shall be assigned and transferred to Purchaser at Closing. Seller shall have no surviving rights after Closing to collect past due rentals from tenants.
D. Seller shall pay all state, county and local real estate conveyance, stamp and similar taxes and any transfer taxes due upon Closing or required to be paid upon recording of the Covenant Deed.
E. Seller shall pay for any transfer tax on conveyance or title transfer of any manufactured homes, installment sales contracts/mortgages, vehicles or other personal property included in this sale, including any sales tax with respect to such personal property.
F. Any payments received by Seller with respect to any existing laundry contracts, telecommunications, or cable agreements which extend to periods after Closing, shall be prorated between Purchaser and Seller, based upon the remaining term of such agreement(s), with Seller providing Purchaser with a credit for amounts allocable to the remaining term after Closing against sums due Seller at Closing.
G. Seller shall pay all outstanding bills of utility companies and service providers with respect to the Premises through the day prior to the date of Closing.
H. Seller shall pay the commissions due to the "Base Total Hotel SalesBroker" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, on customary termsSection 15 hereof.
(c) The intent of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, Prorations shall be increased, by:
(i) any cash made between Seller and Purchaser on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read per diem basis as of the Closing Date);
(vi) accrued but unpaid benefits due to employees . The Closing Date shall be a day of income and expense for Purchaser. The following items shall be prorated and adjusted between Seller and Purchaser as of the Hotels who are hired Closing Date, except as otherwise specified:
9.1 Rents paid for the month of Closing by Prime the Tenant under the Lease, and any other prepaid rents (collectively, “Rent”), shall be prorated as of the Closing Date based on the respective number of days of ownership of Seller and Purchaser for such month. Any Rent due or a Prime Subsidiarypast due under the Lease as of Closing shall be paid to Seller on Closing, as and prorated if applicable, which are .
9.2 To the extent not paid by STIdirectly by Tenant, ShoLodge the parties will coordinate to transfer billing for water, electricity, sewer, gas, telephone and other utilities charges as of the Closing Date, and/or prorate such items if such billing transfers cannot be accomplished on Closing. Any security deposits or an Affiliate similar items paid to utility providers by Seller shall remain the property of ShoLodge directly to such employees upon termination of employment; andSeller.
(vii) any other charges or fees customarily prorated by a charge to 9.3 Real estate taxes paid during the seller in the jurisdiction year in which the Real Property is situated, on customary terms.
(c) The intent Closing occurs shall be prorated as of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date on a cash, rather than accrual basis, based on the last ascertainable tax ▇▇▇▇ and such proration shall be final.
9.4 All unapplied balances of security deposits under the Lease held by Seller shall be credited to credit or chargePurchaser on Closing.
9.5 Except as set forth above, as the case may be, Prime or a Prime Subsidiary, as applicable, with there shall be no prorations and all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, prorations shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Datebe final.
Appears in 1 contract
Sources: Loan and Security Agreement (4Front Ventures Corp.)
Closing Adjustments. (a) The cash portion In addition to any other credits or prorations provided elsewhere in this Agreement, the number of preferred units representing the Preferred Membership Interests issued to Transferor at Closing pursuant to Section 1.2 shall be adjusted as of the Purchase Price described Proration Time in accordance with the provisions set forth in this Section 10.1. Transferee and Transferor agree to cause their accountants to prepare a proration schedule (the “Proration Schedule”) of adjustments not later than 3 Business Days prior to Closing. Such adjustments, if and to the extent known and agreed upon as of the Closing Date, shall be paid by Transferee to Transferor (if the prorations result in a net credit to Transferor) or by Transferor to Transferee (if the prorations result in a net credit to Transferee), by increasing or reducing the number of preferred units representing the Preferred Membership Interests and issued to Transferor upon Closing. Any such adjustments or other adjustments prescribed under this Agreement, which are not determined or agreed upon as of the Closing Date, shall be paid by Transferee to Transferor as a credit to Transferor’s Capital Account in Transferee, and Transferor shall receive a corresponding additional number of preferred units in Transferee as provided in Section 6.1(a3.1(c) of the Amended and the Development Site Purchase PriceRestated Operating Agreement, or by Transferor to Transferee in cash, as applicable, shall be increased, by:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before as soon as practicable following the Closing Date arising pursuant to the terms of Sections 10.1(h) and (m), which payment from accounts receivable with respect Transferor to guests Transferee shall be treated by the parties as a purchase price adjustment for all income tax purposes. All such prorations and adjustments under this Agreement shall be calculated based on the actual number of days of the Hotels then in occupancy which in the normal course applicable calendar month and on a 365 day year, as applicable. The provisions of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);this Section 10.1 shall survive Closing.
(iiia) amounts paid prior to Closing for any ad valorem real Real estate taxes and assessments and personal property taxes related to the Properties, to the extent not paid directly by a Tenant or MRO Leasehold Owner under the Ground Lease to the applicable authorities, shall be prorated between Transferor and Transferee at Closing. If Closing shall occur before the amount of taxes is fixed for any Property, the apportionment of all such taxes shall be made based upon one hundred percent (100%) of the tax rate for the preceding year, applied to the latest assessed valuation of such Property. Upon receipt of the actual tax ▇▇▇▇ for such Property, the proration of taxes made at Closing shall be subject to adjustment pursuant to Section 10.1(h) and Section 10.1(m). Refunds of the foregoing for the tax year in which the Closing occurs, net of the reasonable out-of-pocket costs of pursuing any tax contest or proceeding or collecting such funds, shall be prorated in proportion to the respective shares thereof borne by the parties under the preceding sentence, subject to the rights of Tenants and MRO Leasehold Owner to receive all or part of such refunds. Any portion of a refund payable to a Tenant or MRO Leasehold Owner for any period shall be paid to Transferee, who shall effect, and be liable for, payment thereof to such Tenant or MRO Leasehold Owner, as the case may be. 22452514v30
(b) Any and all income and other expenses attributable to the Properties (including, without limitation, income and expenses under the Continuing Contracts and interest under the Existing Mortgage Loans) shall be prorated between Transferor and Transferee at Closing, subject to any other provision of this Section 10.1 that expressly governs the allocation or adjustment of a specific type of income or expense.
(c) Transferor shall arrange for final meter readings on all utilities, to the extent not paid for directly by a Tenant or MRO Leasehold Owner under the MRO Ground Lease to the applicable utility provider, at the Properties to be taken prior to the Closing Date. Transferor shall be responsible for the payment of all such utilities used prior to the Proration Time and Transferee shall be responsible for the payment of all such utilities used on or after the Proration Time. With respect to any utility at a Property for which there is no meter, the expenses for such utility shall be prorated between Transferor and Transferee at Closing based upon the most current ▇▇▇▇ for such utility. All deposits with utility companies will be left in place with such utility companies, and Transferor shall receive a credit therefor at Closing.
(d) Basic rents, which include rent denominated on a square foot basis as well as percentage rent for the Tenants who pay percentage rent in lieu of rent denominated on a square foot basis, in each case, from the Properties (“Basic Rent”), percentage of sales/overage rents and additional rent relating to electricity, HVAC and pass-through charges of taxes, operating, maintenance and other similar expenses, in each case, from the Real Properties (collectively, “Additional Rent”) and the MRO Ground Rent shall, subject to Section 10.1(e), be prorated between Transferor and Transferee based upon Basic Rent, Additional Rent and MRO Ground Rent actually collected (and, with respect to percentage rent, in proportion to the relative number of days in the subject percentage rent lease period occurring prior and subsequent to the Proration Time) or currently due and payable (not more than 30 days overdue). All prepaid Basic Rent, Additional Rent, MRO Ground Rent and other income from the Properties shall be credited to Transferee at Closing, if and to the extent the same is properly allocable to a period of time on or after the Proration Time. With respect to Additional Rent which is paid based upon an estimate with an end-of-year (calendar or fiscal) accounting and adjustment or otherwise, Transferor and Transferee shall, after Closing, make any adjustments to the proration of such items made at Closing, in accordance with the applicable provisions of Section 10.1(i), promptly after the final rental, tax and operating expense numbers become available and such end-of-year accountings are completed. Any adjustments for percentage rent payments or other Additional Rent payments shall be made for any Tenant after completion of the applicable percentage rent lease period or the applicable Additional Rent Year for such Tenant.
(e) Basic Rent, Additional Rent and MRO Ground Rent which is more than 30 days delinquent and remains uncollected at Closing shall not be prorated between Transferor and Transferee at Closing. At Closing, Transferor shall furnish to Transferee a schedule of delinquent Basic Rent, Additional Rent and MRO Ground Rent which is more than 30 days overdue under the Tenant Leases or the MRO Ground Lease. Any Basic Rent, 22452514v30 Additional Rent or MRO Ground Rent received by Transferor or its affiliates from and after the Closing Date shall promptly be remitted to Transferee, for application in accordance with this Agreement. In accordance with Section 10.1(m), Transferor shall be entitled to a credit for Transferor’s pro rata share of any delinquent Basic Rent, Additional Rent and MRO Ground Rent collected by Transferee (including any amounts remitted to Transferee by Transferor pursuant to the provisions of Section 10.1), less the reasonable out-of-pocket costs and expenses actually incurred by Transferee in collecting such delinquent Basic Rent, Additional Rent and MRO Ground Rent, promptly after receipt thereof by Transferee; provided, however, that sums so collected shall be applied, first, in payment of Basic Rent, Additional Rent and MRO Ground Rent for the then current-month (if not the month in which the Closing Date occurs), second, in payment of the Basic Rent, Additional Rent and MRO Ground Rent for the calendar month in which the Closing Date occurs, third, in payment of Basic Rent, Additional Rent and MRO Ground Rent for other periods delinquent subsequent to the Closing Date, and finally, in payment of Basic Rent, Additional Rent and MRO Ground Rent for periods prior to the Closing Date in reverse order in which they were due. Notwithstanding the foregoing, if and to the extent that any delinquent Basic Rent, Additional Rent or MRO Ground Rent owed by a former tenant or lessee of any Property that as of the Closing Date is no longer in occupancy and has no right of occupancy under any unexpired or unterminated lease (including, in the case of any such former tenant or lessee that is the debtor in a federal Bankruptcy Code case, any award or other payment on account of any period from and after 12:01 a.m. of a claim for such delinquent Basic Rent, Additional Rent or MRO Ground Rent is ordered or allowed by the Closing Date;
(ivbankruptcy court in such case) personal property taxesis collected by Transferor or Transferee, gross receipts taxessuch Basic Rent, sales taxesAdditional Rent or MRO Ground Rent shall, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxesin accordance with Section 10.1(m), if anybe credited to Transferor. Transferee shall, relating in the ordinary course of business when Transferor sends bills to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
Tenants, ▇▇▇▇ Tenants (v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (includingand, if applicable, as amendedMRO Leasehold Owner) owing Basic Rent and Additional Rent (and, or pursuant to the separate lease contemplated in Section 3.8if applicable, MRO Ground Rent) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period periods prior to 12:01 a.m. of the Closing Date (regardless of whether such Basic Rent, Additional Rent or, if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreasedMRO Ground Rent, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, was previously billed or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period unbilled or delinquent prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating for a Permitted Exception on account period of any period prior to 12:01 a.m. of one year following the Closing Date (for this purpose "Additional Rent" (as defined and shall in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period ordinary course of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid ratesbusiness, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters collect such past due Basic Rent and Additional Rent (and, if applicable, MRO Ground Rent) and shall promptly notify Transferor if Transferee commences any legal action to collect such past due Basic Rent and Additional Rent (and, if applicable, MRO Ground Rent); provided, however, that Transferee shall have no obligation to incur any extraordinary expense, institute litigation or engage a collection agency in attempting to collect the same, but if Transferee elects to institute such litigation then Transferee will include any sums due Transferor in its collection efforts.
(f) To the extent that any Tenant, pursuant to a right contained in an existing Tenant Lease, conducts an audit respecting any Additional Rent calculation (a “Rent Audit”) for an accounting period that expired prior to the Proration Time, or otherwise becomes entitled to a refund of Additional Rent with respect to a period prior to the Proration Time, Transferor shall be read liable for any refund due to such Tenant or shall be entitled to receive and retain any additional payments due from such Tenant as the result of such Rent Audit. Rent Audits solely for accounting periods that expire prior to the Proration Time shall be settled by 22452514v30 Transferor in accordance with the applicable existing Tenant Lease, subject to Transferee’s approval, which shall not be unreasonably withheld, delayed or conditioned (it being agreed that it shall not be unreasonable for Transferee to withhold consent to any settlement involving a cap or fixed contribution for Additional Rent for periods after the Proration Time), provided, however, that Transferee’s consent to any such settlement shall not be required if the Tenant as part of such settlement agrees that such settlement shall not be binding on the landlord in calculating similar amounts for subsequent years and that such Tenant will not introduce any such settlement in challenging amounts due in any subsequent year. Rent Audits for accounting periods commencing prior to the Closing Date);
(vi) accrued Date but unpaid benefits due not ending until after the Closing Date shall be settled by Transferee acting in good faith and in accordance with the applicable existing Tenant Lease; provided, however, that Transferee shall not agree to employees any settlement of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to Rent Audit for any such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction accounting period in which the Real Property is situatedlandlord makes concessions with respect to the accounting period in question in exchange for concessions by the Tenant in respect of subsequent accounting periods without Transferor’s consent, on customary terms.
which shall not be unreasonably withheld, conditioned or delayed; and provided, further, that any payment that the landlord becomes obligated to make or entitled to receive as a result any such Rent Audit (cand any reasonable out-of-pocket costs and expenses incurred in connection therewith, including reasonable attorneys’ fees and disbursements) The intent shall, subject to Section 10.1(m), be apportioned between Transferor and Transferee in proportion to the respective numbers of days during the accounting period in question that the Contributed Interests are owned by Transferor and Transferee. In the case of a multi-year dispute where a portion of the foregoing is period in question relates to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable a time periods prior to operations before the Closing Date and a portion relates to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on time period from and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries parties shall each bear a proportionate share of the reasonable out-of-pocket costs and Southeastexpenses incurred in connection with such dispute in proportion to the time periods involved.
(g) All Tenant Deposits, as applicable, shall provide the Prime HPT Subsidiary prepaid rentals under Tenant Leases and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for MRO Ground Lease which are properly allocable to the period from and after the Closing Date., cleaning fees and other fees properly allocable to the period from and after the Closing Date, and deposits related to the Properties (including deposits in any marketing funds related to the Properties, if any), shall either be assigned or credited to Transferee at Closing, and Transferee shall thereafter be liable to such Tenants and MRO Leasehold Owner for such Tenant Deposits, prepaid rentals under Tenant Leases and the MRO Ground Lease, cleaning fees and other fees and deposits, which liability shall survive Closing. Any Tenant Deposits maintained in the form of a letter of credit shall be delivered to Transferee or remain with the applicable Property Owner at Closing. From and after the Effective Date, Transferor shall not apply any cash Tenant Deposit or draw down on any Tenant Deposit in the form of a letter of credit unless the applicable Tenant (or MRO Leasehold Owner) is in default under its Tenant Lease (or the MRO Ground Lease) and notice of such draw is given to Transferee. Transferor shall be entitled to the benefit of all Termination Payments (other than Pro-Rated Termination Payments), regardless of when received for any Early Terminated Tenant Lease. To the extent any such Termination Payments (other than Pro-Rated Termination Payments) are received after Closing, the same shall be paid to Transferee and credited to Transferor in accordance with Section 10.1(m). All
Appears in 1 contract
Sources: Contribution Agreement (CBL & Associates Properties Inc)
Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, following items shall be increasedpaid, by:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amendedprorated, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. adjusted as of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);in the manner hereinafter set forth:
(viia) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or PrimeAll real estate Taxes, as applicable; and
(viii) any other charges well as Taxes assessed on Terminal Inventory, due and owing on or fees customarily prorated before the Closing Date, all penalties and interest thereon, and all special assessments affecting the Terminal, whether payable in installments or not, shall be paid in full by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary termsSeller.
(b) The cash portion of Current real estate Taxes, assessments and charges for the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, Terminal shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, prorated as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in upon the HPT Lease) shall be calculated based on tax year of the "Total Hotel Sales" (as defined in applicable taxing authority, without regard to when said Taxes are payable, so that the HPT Lease) for portion of current Taxes allocable to the current period from the beginning of such year to the Closing Date compared to "Base Total Hotel Sales" (as defined in shall be the HPT Lease) for responsibility of Seller and the similar period portion of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided current Taxes allocable to the Hotels portion of such year from the Closing Date to the end of such year shall be the responsibility of Buyer. These Taxes will be prorated based on the current assessed value for any 2004. A post-closing adjustment will be made to reflect accurately Seller's responsibility for that portion of real estate Taxes attributable to the period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due , and Buyer's responsibility for that portion of real estate Taxes attributable to employees the period following the Closing Date. The post-closing adjustment will be made upon receipt by Buyer of the Hotels who are hired relevant tax ▇▇▇▇ from the appropriate Governmental Authorities, but no later than one year following the Closing Date. Any post-closing adjustment proposed by Prime or a Prime Subsidiary, as applicable, which are not paid Buyer will be supported by STI, ShoLodge or an Affiliate copies of ShoLodge directly said tax bills along with other reasonable documentation to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge be provided to the seller in the jurisdiction in which the Real Property is situated, on customary termsSeller.
(c) Seller shall be responsible for the cost of utilities for the Terminal up to Closing and Buyer shall be responsible for such costs thereafter.
(d) Buyer shall bear and pay all title insurance premiums and charges.
(e) Buyer shall bear and pay all realty transfer fees, recording costs and Taxes associated with the conveyance of the Real Property, the Improvements and the Personal Property.
(f) Seller and Buyer shall each pay their own respective legal fees and expenses and the cost of performance of their respective obligations hereunder.
(g) All amounts due Seller under any assignable Revenue-Generating Contract shall be prorated as of the Closing Date upon the payment cycle established under such Revenue-Generating Contract so that the portion the amounts due Seller from the beginning of such payment cycle to the Closing Date will be credited to Seller at Closing.
(h) The Parties shall make all other adjustments necessary to effectuate the intent of the foregoing is to credit or charge, Parties as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting set forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Datein this Appendix.
Appears in 1 contract
Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, following shall be increased, by:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime apportioned on the Closing Date);Statement against sums due Seller at Closing:
(ii) any revenue generated by A. Purchaser acknowledges and agrees that the operation of Tenant pays the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate and personal property taxes and assessments relating directly to the Real Property on account of taxing authority and accordingly, Purchaser shall acquire the Subject Premises subject to any period from unpaid real and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar and in no event shall Seller be responsible for providing Purchaser with any credit towards the real and personal property taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicablewithout limitation, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary termsoutstanding special assessments.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, B. Current rents shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes prorated and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read adjusted as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(c) The intent of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with Purchaser being credited for rents on the date of Closing. Purchaser shall receive a credit at Closing for all revenues and expenses respecting the Assets which are attributable prepaid rents relating to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on periods from and after the Closing Date. At As to rent or other charges arrearages, to the extent that Seller is owed any of such rent or other charges, no adjustment shall be made at Closing, STIbut Purchaser shall deliver to Seller any such amounts owed to Seller when collected, the Additional Hotel Subsidiaries it being acknowledged that monies received by Purchaser from Tenant after Closing shall be allocated first, to current rents and Southeast, as applicable, other current charges due to Purchaser and then to any arrearage due to Seller.
C. Seller shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with receive a list setting forth advance guest bookings, conventions, meetings and credit from Purchaser for any other booking commitments for the period from and prepaid operating expenses paid by Seller prior to Closing which relate to periods on or after the Closing Date. Purchaser shall receive a credit from Seller for any operating expenses to be paid by Purchaser after the Closing Date to the extent that such operating expenses relate to periods prior to the Closing Date.
D. Purchaser shall pay the State and County transfer taxes due upon Closing or required to be paid upon recording of the special warranty deed and any local transfer taxes determined by municipal ordinance due upon Closing or required to be paid upon recording of the special warranty deed.
E. Any Tenant security deposit shall be assumed by Purchaser with credit therefor to Purchaser at Closing. Any utility security deposit paid by Seller shall be assumed by Purchaser and with a credit therefor to Seller at Closing.
F. Seller and Purchaser shall share equally (50%/50%) in any escrow or closing fees charged by the Title Company. The provisions of this Section 12 shall survive Closing.
Appears in 1 contract
Sources: Purchase Agreement (BRIX REIT, Inc.)
Closing Adjustments. (a) The cash portion of the Purchase Price prorations and adjustments described in this Section 6.1(a10 (collectively the "Closing Adjustments") and the Development Site Purchase Price, as applicable, outlined in Schedule II attached hereto shall be increased, bymade between Buyer and Seller at Closing or thereafter in accordance with the following:
(i) any cash on hand at All city, state and county ad valorem taxes and similar impositions levied or imposed upon or assessed against the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing Property (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the Taxes"Total Hotel Sales" (as defined in the HPT Lease) for the current year to the in which Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge occurs shall use commercially reasonable efforts to cause meters to be read prorated as of the Closing Date. Seller shall pay all back taxes. Seller will be responsible for any roll-back taxes applicable to any year prior to the year of the Closing, with the regular and roll-back taxes applicable to the year of the Closing being prorated as of the Closing Date. Seller will escrow, at the Closing, with the Title Company the estimated amount of roll-back taxes for such prior years. In the event the Taxes are not determinable at the time of Closing, the Taxes shall be prorated on the basis of the best available information (the "Estimated Taxes"). In the event any of the Taxes are delinquent at the time of Closing, the same shall be paid at Closing. If the Taxes are not paid at Closing, Seller shall deliver to Buyer the bills for the Taxes promptly upon receipt thereof and Buyer shall thereupon be responsible for the payment in full of the Taxes within the time fixed for payment thereof and before the same shall become delinquent. Notwithstanding the foregoing, in the event actual Taxes for the year of Closing exceed the Estimated Taxes for the year of Closing (the "Tax Excess") or Estimated Taxes for the year of Closing exceed the actual Taxes for the year of Closing (the "Tax Refund"), Seller and Buyer shall prorate and pay such Tax Excess or such Tax Refund as follows:
(A) Seller shall be responsible for a portion of the Tax Excess or shall receive credit for the Tax Refund prorated from January 1 of the year of Closing through the Closing Date based upon a 365 day calendar year. Buyer shall notify Seller of any Tax Excess or Tax Refund. The notification shall include a calculation of the amount due to Buyer from Seller in the case of a Tax Excess or the amount due to Seller from Buyer in the case of a Tax Refund. Seller shall have thirty (30) days from Seller's receipt of such notification to pay its portion of the Tax Excess to Buyer and Buyer shall have thirty (30) days from Buyer's delivery of such notification to Seller to pay Seller its portion of the Tax Refund.
(B) Buyer shall be responsible for a portion of the Tax Excess prorated from the Closing Date through December 31 of the year of Closing based upon a 365 day calendar year. Buyer shall assume responsibility for payment of the Estimated Taxes as of the Closing Date, and shall notify Seller of any Tax Excess or Tax Refund pursuant to the terms of Section (b) hereof;
(vib) accrued but unpaid benefits due to employees All utility charges (including, without limitation, telephone, water, storm and sanitary sewer, electricity, gas, garbage and waste, compost and recycling removal), all Carbon Taxes, Carbon Offsets, and reimbursement for any of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are foregoing for the Project (to the extent not paid or payable by STI, ShoLodge or an Affiliate tenants under Leases) shall be prorated as of ShoLodge directly to such employees upon termination of employment; and
(vii) the Closing Date and Seller shall be credited with any other charges or fees customarily prorated by a charge deposits transferred to the seller in the jurisdiction in which the Real Property is situated, on customary terms.account of Buyer;
(c) The intent All paid rents, together with any other sums paid by tenants, under the Leases (including without limitation operating expenditures, common area maintenance charges, capital expenditures or surcharges including without limitation any related to Green Elements), shall be prorated as of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At In the event that, at the time of Closing, STIthere are any past due or delinquent rents owing by any tenants of the Project, Buyer shall have the Additional Hotel Subsidiaries exclusive right to collect such past due or delinquent rents and Southeastshall remit to Seller its pro-rata share thereof, as applicableto the extent, shall provide and only to the Prime HPT Subsidiary extent, that the aggregate rents received by Buyer from each such tenant owing past due or delinquent rents exceed the sum of (A) the aggregate rents and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings other sums then due and any other booking commitments payable by such tenant for the period periods from and after the Closing Date., and (B) any reasonable and necessary amounts expended by Buyer to collect such past due or delinquent rents. Buyer shall have no obligation to collect or enforce collection of any such past due or delinquent rents from or against any tenant. In the event that, after Closing, Seller receives any payments of rent or other sums due from tenants under Leases that relate to periods from and after Closing, Seller shall promptly forward to Buyer, Buyer's portion of such payments;
(d) Unless otherwise agreed to in writing by Seller and Buyer,
Appears in 1 contract
Sources: Purchase and Sale Agreement
Closing Adjustments. (a) The cash portion following adjustments shall be made at Closing, SUBJECT TO THE PROVISIONS OF THE FSI SUBLEASE:
4.5.1 All real estate taxes applicable to any of the Purchase Price described Real Property due and payable in Section 6.1(a) and the Development Site Purchase Priceyear of Closing, as applicabletogether with all special assessments payable therewith, shall be increasedprorated between Seller and Purchaser on a daily basis as of May 1, by:
(i) any cash on hand at the Hotels when 2005 based upon a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable calendar fiscal year, with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating Seller paying those allocable to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred May 1, 2005, and remain on deposit after Closing Purchaser being responsible for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(c) The intent of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments those allocable for the period from and after May 1, 2005. Purchaser shall receive a credit from Seller at closing for the estimated amount of real estate taxes due for the period prior to May 1, 2005. Such calculation shall be made on the basis of the prior year's taxes and shall be deemed final as between Seller and Purchaser. Notwithstanding the foregoing, Seller shall be responsible for any supplemental taxes assessed on or after the Closing Date relating back to the period prior to the Closing Date. The provision described in the immediately preceding sentence shall survive the Closing.
4.5.2 Personal property taxes, if any, applicable to any of the Personal Property and Excluded Personal Property due and payable in the year of Closing shall be prorated between Seller and Purchaser on a daily basis as of the Closing Date based upon a calendar fiscal year, with Seller paying those allocable to the period prior to the Closing Date and Purchaser being responsible for those allocable to the Closing Date and thereafter. Seller shall be responsible for personal property taxes, if any, applicable to any personal property retained by Seller.
4.5.3 Purchaser shall assume all special assessments (and charges in the nature of or in lieu of such assessments) levied, pending or constituting a lien with respect to any of the Real Property as of the Closing Date.
4.5.4 Seller shall pay all sales tax due regarding this transaction, if any.
4.5.5 Seller shall pay all state deed tax regarding the deed to be delivered by Seller to Purchaser. Purchaser shall pay any mortgage registry tax regarding any mortgage given by Purchaser on the Real Property in connection with this transaction.
4.5.6 Seller shall pay the cost of recording all documents, including the deed to be delivered by Seller to Purchaser.
4.5.7 Purchaser shall pay all service charges for and costs of the Commitment.
4.5.8 Purchaser shall pay all premiums required for any owner's or mortgagee's title insurance policy issued in connection with this transaction.
4.5.9 Seller shall pay any Closing fee payable to Title Company with respect to the transaction contemplated by this Agreement.
4.5.10 All utility expenses, including water, fuel, gas, electricity, telephone, sewer, trash removal, heat and other services furnished to or provided for the Property, and all other operating costs of the Property (including, without limitation, dues payable to the Association and all dues or associations fees attributable to any declarations of covenants, conditions and restrictions or similar agreements that run with the land relating to the Property to which Seller is a party or by which Seller or the Property or any portion thereof may be bound), shall be paid by Seller, pursuant to the provisions of the FSI Sublease.
4.5.11 Except as provided in Section 13, Seller and Purchaser shall each pay their own attorneys' fees incurred in connection with this transaction.
Appears in 1 contract
Sources: Purchase Agreement (Finisar Corp)
Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, following items shall be increasedpaid, by:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amendedprorated, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. adjusted as of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);in the manner hereinafter set forth:
(viia) All real estate Taxes as well as any utility deposits relating to Taxes assessed on the Assets which are transferred Personal Property, due and remain owing on deposit after or before the Closing for Date, all penalties and interest thereon, and all special assessments affecting the benefit of a Prime Subsidiary Terminal, whether payable in installments or Primenot, as applicable; and
(viii) any other charges or fees customarily prorated shall be paid in full by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary termsSeller.
(b) The cash portion of Current ad valorem Taxes including real estate Taxes, special assessments and charges for the Purchase Price described in Section 6.1(acurrent year (“Property Taxes”) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, allocated between Seller and Buyer as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in on the HPT Lease) basis of no applicable discount. The allocation shall be calculated based on the "Total Hotel Sales" (as defined in number of days that each party owns the HPT Lease) Terminal during the year of the sale. If the amount of such Property Taxes with respect to the Terminal for the current calendar year to in which the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read occurs has not been determined as of the Closing Date, then the Property Taxes with respect to the -49- TERMINAL SALE AND PURCHASE AGREEMENT (▇▇▇▇▇▇ (WEST);
(vi) accrued but unpaid benefits due EXECUTION VERSION Terminal for the preceding calendar year, on the basis of no applicable discount, shall be used to employees calculate such allocations, with known changes in valuation applied. Seller’s allocated share of the Hotels who are hired by Prime or Property Taxes for the current year shall be credited to Buyer at Closing as a Prime Subsidiaryreduction in Purchase Price and Buyer shall assume the responsibility to pay the Property Taxes, as applicableunless Seller has already paid the current year’s Property Taxes, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which case Seller shall be credited at Closing as an increase in Purchase Price with Buyer’s allocated share of the Real Property is situatedTaxes. If the actual amount of any such Property Taxes varies by more than Twenty Thousand Dollars ($20,000) from estimates used at the Closing to prorate such taxes, then the parties shall re-prorate such Property Taxes within ten (10) days following a request by either party based on customary termsthe actual amount of the tax bills.
(c) Seller shall be responsible for the cost of the Terminal’s utilities up to Closing and Buyer shall be responsible for such costs thereafter.
(d) Buyer shall bear and pay all title insurance premiums and charges.
(e) Buyer shall bear and pay all realty transfer fees, recording costs and Taxes associated with the conveyance of the Real Property, the Improvements and the Personal Property, except Taxes imposed by reason of capital or income of Seller. Seller and Buyer agree that no sales and use taxes will be reported in connection with the transfer of the Terminal to Buyer since such sale qualifies for an occasional sale exemption.
(f) Seller and Buyer shall each pay their own respective legal fees and expenses and the cost of performance of their respective obligations hereunder.
(g) All amounts due Seller under any assignable revenue-generating contract shall be prorated as of the Closing Date upon the payment cycle established under such revenue-generating contract so that the portion the amounts due Seller from the beginning of such payment cycle to the Closing Date will be credited to Seller at Closing. -50- TERMINAL SALE AND PURCHASE AGREEMENT (▇▇▇▇▇▇ (WEST)) EXECUTION VERSION
(h) The Parties shall make all other adjustments necessary to effectuate the intent of the foregoing is to credit or charge, Parties as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting set forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Datein this Agreement.
Appears in 1 contract
Sources: Terminal Sale and Purchase Agreement (Sunoco Logistics Partners Lp)
Closing Adjustments. The following items shall be apportioned and adjusted between the Seller and the Buyer as of the Transfer Date and the net amount (the "Net --- Adjustment Amount") shown to be payable to the Seller or to the Buyer, as the ----------------- case may be, shall be paid on the Transfer Date, (a) The cash portion of if to the Purchase Price described in Section 6.1(aSeller, by adding the Net Adjustment Amount to the Buyer's Closing Payment, or (b) and if to the Development Site Purchase PriceBuyer, as applicable, shall be increased, byby adding the Net Adjustment Amount to the Seller's Closing Payment:
(i) To the extent paid or payable by the Seller pursuant to the Lease (as allocable to the Branch space), real estate taxes and any cash on hand other taxes (other than any sales or transfer taxes which shall be for the account of the Buyer as hereinafter provided) in the nature thereof and constituting a lien upon the real property if not paid. If the amount of real estate taxes for the fiscal year during which the Transfer Date occurs is not known at the Hotels when a Prime Subsidiary takes possession (any Transfer Date, such cash taxes shall be counted by representatives of ShoLodge and Prime apportioned on the Closing Date);basis of the assessment for such period (or the assessment for the prior tax period if the assessment for the current tax period is not then known) and shall be reapportioned as soon as the actual tax rate is known. The Buyer agrees to pay any local or state transfer taxes and provide an appropriate return or form executed by the Buyer, as may be required.
(ii) any revenue generated Rents paid or payable by the operation of Seller pursuant to the Hotels through and including Lease (as allocable to the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing DateBranch space);.
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments Fees relating to the Real Property on account of any period from Purchased Assets and after 12:01 a.m. of Assumed Liabilities for customary annual or other periodic licenses and permits for periods up to the Closing Transfer Date;.
(iv) personal property taxesWater and sewer charges and rents inclusive of charges for hot and cold water and charges for steam, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income electricity and franchise taxes)gas, if any, relating any (as allocable to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;Branch space).
(v) amounts Rents paid prior or payable to Closing under any Operating Agreement, the HPT Lease Seller pursuant to rental agreements between the Seller and renters of safe deposits boxes at the Branch.
(includingvi) Insurance premiums paid or payable to the FDIC attributable to insurance coverage for deposit liabilities of the Branch (to the extent included as part of the Purchased Assets pursuant to Section 2.1 hereof). The Seller will endeavor to obtain final cut-off readings for water and utilities, if applicable, as amendedon the day before the Closing. The Seller shall pay the bills based on such readings promptly after the same are rendered. If arrangements cannot be made for such cut-off readings, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception parties shall apportion the charges for such services on account of any period from and after 12:01 a.m. the basis of the Closing Date;
(vi) accrued but unpaid interest earnings on ▇▇▇▇ therefor for the HPT Lease Guaranty Deposit for any most recent billing period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or PrimeClosing, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase PriceSeller and the Buyer shall promptly, as applicable, shall be decreased, by:
and in any event within thirty (i30) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(c) The intent of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and days after the Closing Date. At Closing, STI, readjust the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide apportionments in accordance with the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Datenext bills rendered.
Appears in 1 contract
Sources: Asset Purchase Agreement (First International Bancorp Inc)
Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, following items shall be increasedpaid, by:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amendedprorated, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. adjusted as of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);in the manner hereinafter set forth:
(viia) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or PrimeAll real estate Taxes, as applicable; and
(viii) any other charges well as Taxes assessed on each Terminal Inventory, due and owing on or fees customarily prorated before the Closing Date, all penalties and interest thereon, and all special assessments affecting the Terminals, whether payable in installments or not, shall be paid in full by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary termsSeller.
(b) The cash portion of the Purchase Price described in Section 6.1(a) Current real estate Taxes, assessments and the Development Site Purchase Price, as applicable, charges shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, prorated as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in upon the HPT Lease) shall be calculated based on tax year of the "Total Hotel Sales" (as defined in applicable taxing authority, without regard to when said Taxes are payable, so that the HPT Lease) for portion of current Taxes allocable to the current period from the beginning of such year to the Closing Date compared to "Base Total Hotel Sales" (as defined in shall be the HPT Lease) for responsibility of Seller and the similar period portion of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided current Taxes allocable to the Hotels for any period prior to 12:01 a.m. portion of such year from the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in end of such year shall be the jurisdiction in which the Real Property is situated, on customary termsresponsibility of Buyer.
(c) Seller shall be responsible for the cost of Terminals utilities up to Closing and Buyer shall be responsible for such costs thereafter. Seller shall cooperate with Buyer in transferring all utility accounts to Buyer’s name effective as of the Closing.
(d) Buyer shall bear and pay all title insurance premiums and charges.
(e) Buyer shall bear and pay all realty transfer fees, recording costs and Taxes associated with the conveyance of the Real Property, the Improvements and the Personal Property.
(f) Seller and Buyer shall each pay their own respective legal fees and expenses and the cost of performance of their respective obligations hereunder.
(g) All amounts due Seller under any assignable Revenue-Generating Contract shall be prorated as of the Closing Date upon the payment cycle established under such Revenue-Generating Contract so that the portion the amounts due Seller from the beginning of such payment cycle to the Closing Date will be credited to Seller at Closing.
(h) The Parties shall make all other adjustments necessary to effectuate the intent of the foregoing is to credit or charge, Parties as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting set forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Datein this Agreement.
Appears in 1 contract
Sources: Terminals Sale and Purchase Agreement (Global Partners Lp)
Closing Adjustments. 6.1. The following are to be prorated or adjusted (a) The cash portion of as appropriate), if feasible, at the Purchase Price described in Section 6.1(a) and the Development Site Purchase PriceClosing, as applicable, shall be increased, by:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime 11:59 P.M. on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after day immediately preceding the Closing (the amount of such revenue to be determined by representatives of ShoLodge "Adjustment Date"):
6.1.1. All collected rent and Prime other collected income (and any applicable state or local tax on rent) under Leases in effect on the Closing Date shall be prorated. Seller shall be charged with any rent and other income collected by Seller before Closing but applicable to any period of time after Closing. Uncollected rent and other income shall not be prorated. Purchaser shall apply rent and other income from tenants that are collected after the Closing first to the obligations then owing to Purchaser for its period of ownership and to costs of collection, remitting the balance, if any, to Seller. Any prepaid rents for the period following the Closing Date shall be paid over by Seller to Purchaser. Purchaser will make reasonable efforts, without suit, to collect any rents applicable to the period before the Closing Date);. Seller may pursue collection against tenants as to any rent not collected by Purchaser within 6 months following the Closing Date provided that Seller shall have no right to pursue collection efforts against any tenant while in occupancy of an apartment at the Property. In the event that any tenant pays its rent via an ACH or other automatic debit system, Seller shall cancel such automatic payments at Closing; provided, however, in the event that an automatic rent payment is erroneously forwarded to Seller after Closing, Seller, shall remit such payment to Purchaser in accordance with Section 6.2. For purposes of this Section 6.1.1, the term "rents" excludes any application fees, administrative fees, non-refundable deposits, late fees or other charges. One final adjustment shall be made on or about the 90th day following Closing and this adjustment shall be final.
(iii) amounts paid prior to Closing for any ad valorem real 6.1.2. Real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes“Taxes”), if any, relating to the Assets paid prior to Closing on account of any period from including penalties and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicableinterest, shall be decreasedprorated as follows: Seller shall pay all Taxes which became due and payable prior to the Closing and a prorata share of the Taxes becoming due and payable after the Closing based on the Taxes which are a lien for the year of the Closing, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem even if such Taxes and assessments are not yet due and payable. If bills for real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read have not been issued as of the Closing Date);
(vi) accrued but unpaid benefits due to employees , and if the amount of real estate taxes for the then current tax year is not then known, the apportionment of real estate taxes shall be made at Closing on the basis of the Hotels who full value of the prior year’s real estate taxes and adjusted after Closing pursuant to Section 6.2 hereof. Seller’s protest of the 2013 Taxes has been resolved and Seller shall pay, on or before Closing, the balance of any amounts due for the 2013 real estate tax liability for the Property.
6.1.3. Tax and utility company deposits, if any, and if assignable and assigned.
6.1.4. Electric, gas, water and sewer charges on the basis of the most recent bills available, but if there are hired by Prime or a Prime Subsidiarymeters on the Property, as applicableSeller, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in extent the jurisdiction in which the Real Property same is situatedobtainable, on customary terms.
(c) The intent shall furnish a reading effective as of the foregoing is Adjustment Date, or if not so obtainable, to credit a date not more than 30 days prior to the Adjustment Date, and the unfixed meter charges based thereon for the intervening period shall be apportioned on the basis of such last reading. Upon the taking of a subsequent actual reading, such apportionment shall be readjusted and Seller or chargePurchaser, as the case may be, STIwill promptly deliver to the other the amount determined to be so due upon such readjustment. If Seller is unable to furnish such prior reading, any reading subsequent to the Closing will be apportioned on a per diem basis from the date of such reading immediately prior thereto and Seller shall pay the proportionate charges due up to the date of Closing.
6.1.5. Amounts paid or payable in respect of any Contracts assigned to Purchaser pursuant to the "▇▇▇▇ of Sale and Assignment" (as such term is defined in Section 8.1.2 hereof).
6.1.6. Purchaser shall receive a credit against the cash portion of the Purchase Price in an amount equal to all Tenant security deposits and accrued interest required to be held by Seller as landlord under the Leases.
6.1.7. All other normal and customarily proratable items including without limitation operating expenses, personal property taxes, prepaid license fees, pre-paid “door fees”, if any, and other charges for licenses and permits for the Real Property which will remain in effect for Purchaser’s benefit after Closing, shall be apportioned pro rata between Seller and Purchaser on a per diem basis based upon a calendar year.
6.1.8. Not more than forty eight (48) hours prior to Closing (“Walk Though Date”), a representative of Purchaser and a representative of Seller shall conduct an onsite walk-through of the then unoccupied rental units on the Property to determine whether such unoccupied rental units are in “rent ready” condition. With respect to any rental unit that is vacated on or before five (5) Business Days prior to Closing that Seller has not placed in a “rent ready” condition before the Walk Through Date, Purchaser shall receive a credit against the Purchase Price at Closing in the amount of $750 per unit. As used herein, “‘rent ready’ condition” shall mean ready for occupancy, equipped, repaired, and cleaned in accordance with Seller’s normal operating practices. Nothing contained in this Section 6.1.8 shall be construed as limiting Purchaser’s rights and Seller’s obligations under the other provisions of this Agreement. Except as set forth in this Agreement, the Additional Hotel Subsidiariescustoms of the county in which the Property is located shall govern prorations. The provisions of Section 6.1 and 6.2 shall survive the Closing.
6.2. If final prorations cannot be made at Closing for any item being prorated under Section 6.1, Southeast then Purchaser and Seller agree to allocate such items on a fair and equitable basis as soon as invoices or the Development Subsidiaries, as applicablebills are available, with all revenues and expenses respecting final adjustment to be made as soon as reasonably possible after the Assets which are attributable to operations before the Closing Date and to credit or chargeClosing, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and but no later than 90 days after the Closing Date(except that taxes will be reprorated within 30 days after each party receives a final, non-appealable tax ▇▇▇▇ and without regard to the foregoing 90 day period), to the effect that income and expenses are received and paid by the parties on an accrual basis with respect to their period of ownership. At ClosingPayments in connection with the final adjustment shall be due within 30 days of written notice. Seller shall have reasonable access to, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiaryright to inspect and audit, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for Purchaser’s books to confirm the period from and after the Closing Datefinal prorations.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Resource Real Estate Opportunity REIT, Inc.)
Closing Adjustments. Except as otherwise set forth hereafter, if the transaction contemplated by this Agreement shall be consummated, the following items shall be paid, prorated or adjusted as of the close of business on the day prior to the Closing Date (athe “Proration Date”) The in the manner hereinafter set forth:
10.1 Real estate and all personal property taxes due and owing as of the Proration Date, and all penalties and interest thereon and special assessments affecting the Property, will be paid in full by Seller.
10.2 Current real estate taxes and personal property taxes shall be prorated as of the Proration Date, without regard to when said taxes would be payable in relation to the tax year of the applicable taxing authority, so that the portion of the current taxes allocable to the period from the beginning of such tax year, through the Proration Date, shall be credited to Purchaser, and the portion of the current taxes allocable to the portion of such tax year, from the Proration Date to the end of such tax year, shall be the responsibility of Purchaser. If the amount of the current taxes shall not then be ascertainable, the adjustment thereof shall be predicated upon one hundred five percent (105%) of the most recent ascertainable taxes. Seller and Purchaser hereby further do agree as to the proration for real estate taxes, to re-prorate said real estate taxes promptly upon Purchaser’s receipt of the actual tax b▇▇▇ for the relevant tax year. Notwithstanding anything contained herein to the contrary, in no event shall Purchaser be liable for any taxes levied with respect to buildings or improvements not on the Land. In addition, Purchaser shall have the exclusive right to file, prosecute and/or appeal a tax complaint for the year in which the Proration Date shall occur, all prior years and all subsequent years, and all refunds and other sums due by reason of such tax complaint and/or appeal (collectively, “Refunds”) shall be the property of, and any and all costs associated therewith shall be payable by, the party that shall be responsible, whether pursuant to this Agreement and/or the Lease, for the relevant taxes payable as to the Property and attributable to the year to which such Refunds, if any, shall be applied. Seller hereby assigns to Purchaser all rights that Seller and S▇▇▇▇▇, respectively, may have to file a tax complaint or appeal for such years. Along those lines, promptly after the Effective Date, Purchaser shall initiate the process of appealing the current assessed valuation of the Property.
10.3 Seller shall bear and pay the premium for the Title Policy, the charges to comply with the terms of Paragraph 4.1, the cost of the Survey, subject to the remaining terms and conditions hereof, all state, county and local transfer, documentary and stamp taxes on the sale contemplated hereby, all release and recording fees and the ACM Remediation Credit.
10.4 Purchaser shall bear and pay any title examination fees and additional premiums charged in connection with issuance of any loan policy of title insurance (and endorsements thereto), as well as the costs of Purchaser’s due diligence investigation, tests and reports as to the Property, including, without limitation, all costs associated with obtaining any environmental assessments of the Property.
10.5 Except as otherwise expressly set forth herein, each party shall bear, pay and be responsible for any and all costs and expenses incurred by such party and/or its respective employees, agents and representatives in connection with the subject transaction, including, without limitation, those of their respective attorneys and accountants.
10.6 All other items that customarily would be prorated in connection with transactions similar to the subject transaction, and which have not been addressed herein, will be prorated as of the Proration Date in accordance with standard C▇▇▇ County, Illinois closing practices.
10.7 All adjustments made pursuant to this Article 10 shall be paid in cash or credited against the cash portion of the Purchase Price described in Section 6.1(a) and at the Development Site Purchase Price, as applicable, Closing. All adjustments made pursuant to this Article 10 shall be increasedmade on the basis of a thirty (30) day month and, by:
(i) any cash on hand to the extent reasonably practicable, such prorations shall be made at the Hotels when a Prime Subsidiary takes possession (Closing. To the extent any such cash prorations cannot be made at the Closing, the same shall be counted by representatives of ShoLodge adjusted and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received completed after the Closing (the amount of such revenue as and when complete information shall become available. Seller and Purchaser agree to be determined by representatives of ShoLodge cooperate and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use their commercially reasonable efforts to cause meters to be read as of the Closing Date);
complete such prorations no later than thirty (vi30) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(c) The intent of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and days after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries Seller and Southeast, as applicable, Purchaser shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after use their commercially reasonable efforts prior to the Closing Dateto prepare a schedule of the items to be prorated in accordance with this Article 10, so that such prorations can be made at the Closing.
Appears in 1 contract
Closing Adjustments. (a) The cash portion following shall be apportioned against sums due Seller at Closing:
A. All payments received by Seller from the Tenant for fixed rent shall be prorated as of the Purchase Price described in Section 6.1(aClosing Date with Purchaser receiving the fixed rent payable with respect to the day of Closing and for all periods thereafter and all payments received by Seller from the Tenant, for additional rental items such as real estate taxes, utilities, maintenance and operating expenses, insurance and similar reimbursements, expenses, escalation payments and prepaid expense items allocable to lease periods (under the Lease) and extending to periods after the Development Site Purchase Price, as applicableClosing, shall be increasedprorated as of the Closing with Purchaser receiving a credit for the amount payable for the day of Closing and thereafter, by:
(i) any cash on hand shall be allocated and distributed to Purchaser together with an accounting therefor or at Purchaser's option credited to Purchaser at the Hotels when Closing. In the event that the Tenant pays additional rental items such as real estate taxes, maintenance and operating expenses and insurance on an estimated basis, then, prior to Closing, Seller shall complete a Prime Subsidiary takes possession (reconciliation of all such expenses and shall provide Purchaser with a credit at Closing for any such cash amounts which Purchaser may be obligated to refund to the Tenant. In no event shall Purchaser be charged with any past due rentals, which, if collected by Purchaser, shall be counted remitted to Seller only after all current rents and other charges have been satisfied, and less Purchaser's reasonable costs of collection, including attorney's fees. Seller shall have no surviving rights after Closing to collect from the Tenant any past due amounts. Should any current charges or ▇▇▇▇▇▇▇▇ to or for utilities, including electricity, sewer and water charges that are payable in arrears, be unknown at the Closing, such charges shall be estimated and prorated as of the Closing, with Purchaser receiving a credit from Seller, based upon the last available invoices or billing therefor.
B. All real and personal property taxes and special assessments of whatever nature and kind which have become due and payable or are delinquent as of the date of Closing shall be paid and discharged by representatives Seller and reimbursed by Tenant in the manner consistent with the Lease. To the extent not paid directly by the Tenant, all taxes for periods prior to Closing which have not yet been paid and are not yet due and payable as of ShoLodge the date of Closing shall become the responsibility of the Purchaser to provide the tax statements to Tenant and Prime receive full reimbursement for all taxes paid from Tenant in the manner consistent with the Lease. In the event Seller is owed any taxes for periods prior to Closing and which are to be paid for by Tenant pursuant to the Lease, then, Purchaser shall not be required to provide Seller with a credit at Closing; provided, however, at such time as Purchaser has received such amounts from the Tenant under the Lease, it shall remit such amounts to Seller and in no event shall Purchaser be responsible for payment to Seller of any amount of real estate taxes under this Section 9.B. Seller shall provide evidence of all tax payments and statements to Purchaser for the previous three (3) years within five (5) days of Effective Date.
C. Seller shall be responsible for payment of all operating expenses related to the Subject Premises prior to the Closing Date, which shall be paid in full prior to Closing and Seller shall provide Purchaser with reasonable evidence that all such operating expenses including all outstanding bills of utility companies and service providers have been paid in full for the time period prior to the Closing Date. Purchaser shall be responsible for all such expenses on the Closing Date and thereafter.
D. Seller shall be responsible for payment of all amounts due under all reciprocal easement agreements for the time period prior to the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before . Purchaser shall be responsible for all such amounts on the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);thereafter.
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes)E. All tenant security deposits, if any, relating to the Assets paid prior to Closing on account of any period from shall be assumed by Purchaser with credit therefor against sums due at Closing.
F. Seller shall pay all state, county, city and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreementother real estate conveyance, the HPT Lease (includingtangible, if applicableintangible, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from stamp and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred similar taxes and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges transfer taxes due upon Closing or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements required to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. upon recording of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) Special Warranty Deed.
G. Purchaser and Seller shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situatedsplit, on customary termsa fifty/fifty (50/50) basis, any escrow fees/closing fees charged by the Escrow Agent.
(c) The intent of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Date.
Appears in 1 contract
Sources: Purchase Agreement (Aei Income & Growth Fund Xxii LTD Partnership)
Closing Adjustments. (a) The cash portion following adjustments shall be made at Closing, subject to the provisions of the Purchase Price described FSI Sublease:
4.5.1 All real estate taxes applicable to any of the Real Property due and payable in Section 6.1(a) and the Development Site Purchase Priceyear of Closing, as applicabletogether with all special assessments payable therewith, shall be increasedprorated between Seller and Purchaser on a daily basis as of May 1, by:
(i) any cash on hand at the Hotels when 2005 based upon a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable calendar fiscal year, with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating Seller paying those allocable to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred May 1, 2005, and remain on deposit after Closing Purchaser being responsible for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(c) The intent of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments those allocable for the period from and after May 1, 2005. Purchaser shall receive a credit from Seller at closing for the estimated amount of real estate taxes due for the period prior to May 1, 2005. Such calculation shall be made on the basis of the prior year’s taxes and shall be deemed final as between Seller and Purchaser. Notwithstanding the foregoing, Seller shall be responsible for any supplemental taxes assessed on or after the Closing Date relating back to the period prior to the Closing Date. The provision described in the immediately preceding sentence shall survive the Closing.
4.5.2 Personal property taxes, if any, applicable to any of the Personal Property and Excluded Personal Property due and payable in the year of Closing shall be prorated between Seller and Purchaser on a daily basis as of the Closing Date based upon a calendar fiscal year, with Seller paying those allocable to the period prior to the Closing Date and Purchaser being responsible for those allocable to the Closing Date and thereafter. Seller shall be responsible for personal property taxes, if any, applicable to any personal property retained by Seller.
4.5.3 Purchaser shall assume all special assessments (and charges in the nature of or in lieu of such assessments) levied, pending or constituting a lien with respect to any of the Real Property as of the Closing Date.
4.5.4 Seller shall pay all sales tax due regarding this transaction, if any.
4.5.5 Seller shall pay all state deed tax regarding the deed to be delivered by Seller to Purchaser. Purchaser shall pay any mortgage registry tax regarding any mortgage given by Purchaser on the Real Property in connection with this transaction.
4.5.6 Seller shall pay the cost of recording all documents, including the deed to be delivered by Seller to Purchaser.
4.5.7 Purchaser shall pay all service charges for and costs of the Commitment.
4.5.8 Purchaser shall pay all premiums required for any owner’s or mortgagee’s title insurance policy issued in connection with this transaction.
4.5.9 Seller shall pay any Closing fee payable to Title Company with respect to the transaction contemplated by this Agreement.
4.5.10 All utility expenses, including water, fuel, gas, electricity, telephone, sewer, trash removal, heat and other services furnished to or provided for the Property, and all other operating costs of the Property (including, without limitation, dues payable to the Association and all dues or associations fees attributable to any declarations of covenants, conditions and restrictions or similar agreements that run with the land relating to the Property to which Seller is a party or by which Seller or the Property or any portion thereof may be bound), shall be paid by Seller, pursuant to the provisions of the FSI Sublease.
4.5.11 Except as provided in Section 13, Seller and Purchaser shall each pay their own attorneys’ fees incurred in connection with this transaction.
4.5.12 At Closing, (i) Seller shall pay to Seller’s Broker a fee equal to One Hundred Forty-Nine Thousand Three Hundred Fifty No/100 Dollars ($149,350.00); (ii) Seller shall pay to Purchaser’s Broker a fee equal to Two Hundred Seventeen Thousand No/100 Dollars ($217,000.00); and (iii) Purchaser shall pay to Purchaser’s Broker a fee equal to Twenty-Nine Thousand Two Hundred Fifty No/100 Dollars ($29,250.00). If any of the amounts allocated under this Section 4.5 cannot be calculated with complete precision at Closing because the amount or amounts of one or more items included in such calculation are not then known, then such calculation shall be made on the basis of the reasonable estimates of Seller and Purchaser, subject to prompt adjustment (by additional payment or refund, as necessary) when the amount of any such item or items become known (the foregoing covenant to survive the Closing).
Appears in 1 contract
Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, following items shall be increasedpaid, by:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amendedprorated, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. adjusted as of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);in the manner hereinafter set forth:
(viia) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or PrimeAll real estate Taxes, as applicable; and
(viii) any other charges well as Taxes assessed on Terminal Inventory, due and owing on or fees customarily prorated before the Closing Date, all penalties and interest thereon, and all special assessments affecting the Terminal, whether payable in installments or not, shall be paid in full by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary termsSeller.
(b) The cash portion of the Purchase Price described in Section 6.1(a) Current real estate Taxes, assessments and the Development Site Purchase Price, as applicable, charges shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, prorated as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in upon the HPT Lease) shall be calculated based on tax year of the "Total Hotel Sales" (as defined in applicable taxing authority, without regard to when said Taxes are payable, so that the HPT Lease) for portion of current Taxes allocable to the current period from the beginning of such year to the Closing Date compared to "Base Total Hotel Sales" (as defined in shall be the HPT Lease) for responsibility of Seller and the similar period portion of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided current Taxes allocable to the Hotels portion of such year from the Closing Date to the end of such year shall be the responsibility of Buyer. These Taxes will be prorated based on the current assessed value for any 2004. A post-closing adjustment will be made to reflect accurately Seller's responsibility for that portion of real estate Taxes attributable to the period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due , and Buyer's responsibility for that portion of real estate Taxes attributable to employees the period following the Closing Date. The post-closing adjustment will be made upon receipt by Buyer of the Hotels who are hired relevant tax bill from the appropriate Governmental Authorities, but no later than ▇▇▇ year following the Closing Date. Any post-closing adjustment proposed by Prime or a Prime Subsidiary, as applicable, which are not paid Buyer will be supported by STI, ShoLodge or an Affiliate copies of ShoLodge directly said tax bills along with other reasonable documentation to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge be provided to the seller in the jurisdiction in which the Real Property is situated, on customary termsSeller.
(c) Seller shall be responsible for the cost of Terminal utilities up to Closing and Buyer shall be responsible for such costs thereafter.
(d) Buyer shall bear and pay all title insurance premiums and charges.
(e) Buyer shall bear and pay all realty transfer fees, recording costs and Taxes associated with the conveyance of the Real Property, the Improvements and the Personal Property.
(f) Seller and Buyer shall each pay their own respective legal fees and expenses and the cost of performance of their respective obligations hereunder.
(g) All amounts due Seller under any assignable Revenue-Generating Contract shall be prorated as of the Closing Date upon the payment cycle established under such Revenue-Generating Contract so that the portion the amounts due Seller from the beginning of such payment cycle to the Closing Date will be credited to Seller at Closing.
(h) The Parties shall make all other adjustments necessary to effectuate the intent of the foregoing is to credit or charge, Parties as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting set forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Datein this Agreement.
Appears in 1 contract
Sources: Terminal Purchase and Sales Agreement (Buckeye Partners L P)
Closing Adjustments. (a) The cash portion following are to be apportioned as of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be increased, byClosing Date:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date)real property taxes;
(ii) any revenue generated by the operation of the Hotels through water rates and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date)charges;
(iii) amounts paid prior to Closing for any ad valorem real estate sewer taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Daterents;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Dateall base rent payments;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (includingcommon area and other additional rent charges, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Dateany;
(vi) accrued but unpaid interest earnings fuel oil on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI)hand, determined at Seller's cost;
(vii) any utility deposits relating to the Assets which are transferred insurance premiums on transferable policies, if any, approved by Purchaser; and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges annual license, permit and inspection fees, if any, provided that Seller's rights thereunder (or fees customarily prorated by a credit with respect thereto) are transferable to the seller in the jurisdiction in which the Real Property is situated, on customary termsPurchaser.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem Apportionment of real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy water rates and charges and sewer taxes or other similar taxes (but excluding income and franchise taxes), if any, relating rents shall be made on the basis of the fiscal year for which assessed solely to the Assets extent actually received by Seller from Tenants or actually paid or payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of by Seller. If the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for occur before any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(c) The intent all of the foregoing is are fixed, the apportionment of real property taxes shall be made on the basis of the tax rate for the preceding year applied to credit the latest assessed valuation. After the final real property taxes, water rates and charges and sewer taxes and rents are fixed, Seller and Purchaser shall make a recalculation of the apportionment of same, and Seller or chargePurchaser, as the case may be, STIshall make an appropriate payment to the other based on such recalculation.
(ii) If at the time for the delivery of the Deed, the Additional Hotel SubsidiariesPremises shall be or shall have been affected by an assessment or assessments (including special and/or added) which are or may become payable in annual installments of which the first installment is then due or has been paid, Southeast then for the purposes of this Agreement all the unpaid installments of any such assessment, including those which are to become due and payable after the delivery of the Deed for the Premises, shall be deemed to be due and payable and to be liens upon such Premises affected thereby and shall be paid and discharged by Seller upon the delivery of the Deed for the Premises. If any assessment with respect to the Premises is unconfirmed at the time of Closing, or if subsequent to Closing any assessment, including special or added, is determined to be incorrect, then, immediately after the amount of the assessment has been established, or the Development Subsidiariesconfirmed assessment corrected as a result of a prior error, as applicableSeller shall make an appropriate payment to Purchaser within ten (10) days of the tax assessor's calculation of the assessment. Notwithstanding the foregoing, if the tenant(s) of the Premises are obligated under a written lease for the payment of the entire assessment (confirmed and/or unconfirmed), then with respect to such assessment Purchaser shall seek payment from the Tenant(s), and any assessment not otherwise the obligation of the Tenant(s) shall be the obligation of Seller. Seller shall indemnify and hold Purchaser harmless from and against all costs and expenses, including reasonable attorneys fees, incurred by Purchaser in connection with Seller's failure to perform Seller's obligation under this Paragraph 9(b)(ii).
(c) If there shall be any water meters on the Property (other than meters measuring water consumption costs which are the obligation of Tenants to pay), Seller shall furnish readings to a date not more than ten (10) days prior to the Closing Date, and the unfixed water rates and charges and sewer taxes and rents, if any, based thereon for the intervening time, shall be apportioned on the basis of such last readings.
(d) The amount of unpaid taxes, assessments, water charges and sewer rents which Seller is obligated to pay and discharge, with all revenues interest and expenses respecting penalties thereon to the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and fifth (5th) day after the Closing Date. At , at the option of Seller, may be allowed to Purchaser out of the Purchase Price, provided that official bills therefor with interest and penalties thereon are furnished by Seller at the Closing.
(e) If any refund of real property taxes, STIwater rates and charges or sewer taxes and rents is made after the Closing Date for a period prior to the Closing Date, the Additional Hotel Subsidiaries same shall be applied first to the costs incurred in obtaining same and Southeastsecond to the refunds due to Tenants by reason of the provisions of their respective Leases. The balance, as applicableif any, of such refund shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments be paid to Seller (for the period prior to the Closing Date) and Purchaser (for the period commencing with the Closing Date).
(f) To the extent that Seller receives rent payments after the Closing Date for any period from and after the Closing Date, the same shall be held in trust and immediately paid to Purchaser.
(g) All rent payments received by Seller or Purchaser after Closing shall be applied firstly against out-of-pocket costs of collection, then to rents due and owing by such Tenant for the periods from and after Closing and thereafter against rents due and owing prior to Closing in inverse order of due date.
(h) All realty transfer fees and charges (other than recording fees for the Deed) shall be paid by Seller at Closing.
Appears in 1 contract
Closing Adjustments. (a) The cash portion following adjustments shall be made at Closing:
4.5.1 General real estate taxes applicable to any of the Purchase Price described Real Property due and payable in Section 6.1(a) and the Development Site Purchase Priceyear of Closing, as applicabletogether with all special assessments payable therewith, shall be increased, by:
(i) any cash prorated between Seller and Purchaser on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives daily basis as of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable based upon a calendar fiscal year, with Seller paying those allocable to the period prior to the Closing Date and Purchaser being responsible for those allocable subsequent thereto.
4.5.2 Purchaser shall assume all special assessments (and charges in the nature of or in lieu of such assessments) levied, pending or constituting a lien with respect to guests any of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. as of the Closing Date;. (Such amounts shall be billed back to Seller pursuant to the Lease.)
(iv) personal property taxes, gross receipts taxes, 4.5.3 Purchaser shall pay all sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes)tax due regarding this transaction, if any, relating .
4.5.4 Seller shall pay all state deed tax regarding the deed to the Assets paid prior be delivered by Seller to Closing Purchaser. Purchaser shall pay any mortgage registry tax regarding any mortgage given by Purchaser on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary termsin connection with this transaction.
(b) The cash portion 4.5.5 Purchaser shall pay the cost of recording all documents, including the deed to be delivered by Seller to Purchaser.
4.5.6 Seller will pay all service charges for and costs of the Purchase Price described in Section 6.1(a) Commitment, and the Development Site Purchase Price, as applicable, survey.
4.5.7 Purchaser shall be decreased, by:pay all premiums required for any owner's or mortgagee's title insurance policy issued in connection with this transaction.
4.5.8 Seller and Purchaser shall each pay one half (i1/2) of any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating Closing fee payable to Title Company with respect to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;transaction contemplated by this Agreement.
(iii) unpaid personal property taxes4.5.9 All utility expenses, gross receipts taxesincluding water, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, waterfuel, gas, electricity, telephone telephone, sewer, trash removal, heat and other utility services furnished to or provided for the Property shall be prorated between Seller and Purchaser on a daily basis as of the Closing Date, with Seller paying those allocable to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts and Purchaser being responsible for those allocable subsequent thereto. Seller agrees to cause have all meters with respect to be any such utilities read as of the Closing Date);.
(vi) accrued but unpaid benefits due to employees 4.5.10 All other operating costs of the Hotels who are hired by Prime or Property shall be prorated between Seller and Purchaser on a Prime Subsidiarydaily basis as of the Closing Date, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge with Seller paying those allocable to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(c) The intent of the foregoing is period prior to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and Purchaser being responsible for those allocable subsequent thereto.
4.5.11 Except as provided in Article 13, Seller and Purchaser shall each pay its own attorneys' fees incurred in connection with this transaction.
4.5.12 Seller shall pay any brokerage commission or finder's fee payable to credit Seller's Broker on account of this transaction and Purchaser shall pay any brokerage commission or chargefinder's fee payable to Purchaser's Broker on account of this transaction. If any of the amounts allocated under this Section 4. cannot be calculated with complete precision at Closing because the amount or amounts of one or more items included in such calculation are not then known, then such calculation shall be made on the basis of the reasonable estimates of Seller and Purchaser, subject to prompt adjustment (by additional payment or refund, as necessary) when the case may be, Prime amount of any such item or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Dateitems become known.
Appears in 1 contract
Sources: Purchase Agreement (Intricon Corp)
Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, following shall be increased, by:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime apportioned on the Closing Date);Statement against sums due Seller at Closing.
(ii) any revenue generated by the operation A. There shall be no proration of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts operating expenses or utilities, it being acknowledged and agreed that Humana is solely responsible for payment of all taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income operating expenses and franchise taxes), if any, relating to utilities at the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary termsSubject Premises.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, B. Current rents shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes prorated and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read adjusted as of the Closing Date);
(vi) accrued but unpaid benefits due , with Purchaser being credited for rents on the date of Closing. Purchaser shall receive a credit at Closing for all prepaid rents relating to employees periods after the Closing Date. Any rents received after the Closing Date shall be applied first to the month of the Hotels who Closing Date, then to any rents accruing after the Closing Date, and then to any rents that were due and payable as of the Closing Date. In the event that Purchaser receives any rents that are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge be applied to periods prior to the seller in Closing Date, Purchaser shall promptly remit such amounts to Seller.
C. At the jurisdiction Closing, Seller shall provide Purchaser with an accounting of the amounts billed by Seller to Humana for operating expenses for the calendar year in which the Real Property is situated, on customary terms.
(c) The intent Closing occurs and the amounts paid by Humana to Seller for such operating expenses for such calendar year. Upon the reconciliation by Purchaser of the foregoing is operating expenses billed to credit or chargeHumana and the amounts actually incurred for such calendar year, Seller and Purchaser shall be liable for overpayments of operating expenses by Humana, and shall be entitled to payment from Humana with respect to underpayments of operating expenses, as the case may be, STIall on a pro rata basis, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues based upon each parties’ period of ownership during such calendar year. Such reconciliation between Purchaser and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and Seller shall occur no later than forty-five (45) days after the Closing Dateend of such calendar year. At Closing, STI, Purchaser and Seller shall cooperate in connection with the Additional Hotel Subsidiaries and Southeast, as applicable, completion of such reconciliation.
D. Seller shall provide Purchaser with a credit for the Prime HPT Subsidiary then unpaid portion of the tenant improvement allowance, if any, required to be paid under Section 6.A of the Fifth Amendment in an amount not to exceed Five Hundred Seventy Eight Thousand Three Hundred Sixty-Four and 00/100 ($578,364.00) Dollars.
E. Seller shall pay all documentary stamp taxes and tangible and intangible transfer taxes required to be paid upon recording of the Special Warranty Deed.
F. Seller shall pay the brokerage commissions due the Broker as provided in Section 15 below and Seller shall be authorized to reduce such brokerage commission by the amount due to Purchaser pursuant to Section 10.G below.
G. Seller shall credit Purchaser with the sum of Eleven Thousand Five Hundred and 00/100 ($11,500.00) Dollars as a reimbursement of a portion of the title insurance premium with respect to Purchaser’s Title Insurance Policy as provided under Section 4.A hereof and the Prime Texas Subsidiary, as applicable, Broker has agreed to contribute to Purchaser the sum of Eleven Thousand Five Hundred and 00/100 ($11,500.00) Dollars towards the title insurance premium with a list setting forth advance guest bookings, conventions, meetings respect to the Title Insurance Policy to be obtained under Section 4.A hereof and any other booking commitments for the period from Broker hereby joins in this Agreement to acknowledge its payments obligation under this Section 10.G and after Seller shall be authorized to pay Eleven Thousand Five Hundred and 00/100 ($11,500.00) Dollars of the Closing Datebrokerage commission otherwise due to the Broker to Purchaser in satisfaction of this obligation.
Appears in 1 contract
Sources: Purchase Agreement (Wells Core Office Income Reit Inc)
Closing Adjustments. Except as otherwise herein provided, the following items shall be paid, prorated and/or adjusted as of the close of business on the day prior to the Closing Date (a) The cash the “Proration Date”), as follows:
10.1 All real estate taxes, personal property taxes and special assessments affecting the Property and due and owing as of the Proration Date, including all penalties and interest thereon, shall be paid in full by Seller; provided, however, that, if any such special assessments shall be paid in installments, Seller only shall be responsible for paying the portion of such assessments due and owing as of the Proration Date.
10.2 Current, non-delinquent real estate taxes, personal property taxes and special assessments affecting the Property shall be prorated as of the Proration Date, without regard to when said taxes and/or assessments would be payable in relation to the tax year of the applicable taxing authority, so that the portion of the Purchase Price described in Section 6.1(a) current taxes and/or assessments allocable to the period from the beginning of such tax year, and any prior years(s), if applicable, through the Development Site Purchase Price, as applicableProration Date, shall be increasedthe responsibility of Seller, by:
(i) any cash on hand at and the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation portion of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate current taxes and and/or assessments relating allocable to the Real Property on account of any period from and after 12:01 a.m. the Proration Date shall be the responsibility of Purchaser. Seller and Purchaser hereby further do agree to re-prorate said prorated taxes and/or assessments forthwith upon Purchaser’s receipt of the actual tax ▇▇▇▇ for the tax year in question. In no event shall Seller be charged with or be responsible for any increase in such taxes and/or assessments resulting from improvements made to the Property after the Closing Date;
or as a result of the transfer of the Property to Purchaser. The covenant contained in this subparagraph shall not be merged into this Agreement or the deed conveying the Land and the Improvements and shall survive the Closing. In the event that, following Closing, Purchaser receives a refund of real estate taxes relating to any period for which Seller provided a credit regarding real estate taxes to Purchaser hereunder (iv) personal property taxesor any tax year prior to such period), gross receipts taxesPurchaser, sales taxesfollowing deduction of any and all costs and expenses incurred by Purchaser in connection with such refund, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes)shall promptly remit to Seller the portion of such refund, if any, relating that Purchaser is not obligated to remit to any other party or to which any other party is entitled, including, without limitation, Navistar or any other tenant of the Assets Property or any tax consultant.
10.3 The following will be credited to Purchaser as of the Proration Date: (i) prepaid rent and rent paid prior to Closing on account for the balance of any period from and after 12:01 a.m. the month of the Closing under the Navistar Lease, (ii) utility costs, operating expenses, insurance costs, personal property expenses and real estate tax expenses (collectively, “Expense Contributions”) that shall have been prepaid by Navistar. Following the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicableSeller shall receive any payments from Navistar, as amendedall such payments promptly shall be remitted to Purchaser and Seller shall take all steps necessary to notify Navistar that all future payments should be sent to Purchaser. When actual Expense Contributions shall have become known, or Purchaser shall ▇▇▇▇ Navistar, pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing Navistar Lease, for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes)additional amount, if any, relating to owed by Navistar as a result of non-payment or underpayment of Navistar’s share of Expense Contributions. Upon collection of such amounts, the Assets payable on account of any period prior to 12:01 a.m. same shall be prorated between Seller and Purchaser based upon Navistar’s share of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, amount of expense incurred by Seller or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(c) The intent of the foregoing is to credit or chargePurchaser, as the case may be, STI, and the Additional Hotel Subsidiaries, Southeast collection(s) of such Expense Contributions from Navistar by Seller or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or chargePurchaser, as the case may be, Prime through and including the Proration Date. The amount of any refund or credit due to Navistar as a Prime Subsidiaryresult of collection by Seller prior to the Closing Date of payments by Navistar for Expense Contributions, which shall exceed the actual amount of such Expense Contributions owed by Navistar for the period prior to the Closing Date, shall be paid by Seller to Purchaser promptly after such Expense Contributions shall have been determined. Notwithstanding anything contained herein, Purchaser’s obligation to remit to Seller any amounts collected by Purchaser from Navistar following Closing shall apply only at such time as Navistar is current in the payment of all rent and other sums accruing after the Closing. Seller may take reasonable action to collect any delinquent rents from Navistar provided that Seller may not commence any legal action against Navistar seeking termination of the Navistar Lease and Seller may not commence any other legal action against Navistar prior to the date which is 30 days after Closing. Upon receipt by Seller of Purchaser’s reasonable written request at any time and from time to time within a period from the Closing until the later of (i) two (2) years after Closing, or (ii) for the period Navistar has the right under the Navistar Lease to audit such books and records of Seller, Seller shall, at Seller’s principal place of business, during Seller’s normal business hours, make available to Purchaser, for inspection and copying (at Purchaser’s sole cost and expense), such of Seller’s records relating to the Property as reasonably shall be necessary for Navistar to conduct any such audit and for Purchaser to respond to the results of the same or for Purchaser to perform any reconciliations.
10.4 Seller shall pay all expenses necessary to repair, operate and maintain the Property in accordance with the ordinary course of its business up to the Proration Date, subject to ordinary wear and tear.
10.5 Meters for utility services payable by Seller shall be read on or immediately prior to the Proration Date, if possible, or as close to the Closing as shall be possible, if a reading on the day prior to the Closing cannot be obtained, and the amounts due, as disclosed by such readings, shall be paid by Seller or credited to Purchaser, as applicable. Otherwise, all utility charges and ▇▇▇▇▇▇▇▇ shall be prorated using the ▇▇▇▇ for the calendar month immediately preceding the Proration Date. All security or service deposits delivered by Seller to any utility provider(s), and any interest required to be paid thereon, shall be and remain the sole property of Seller, and any refund of such deposits shall be made directly to Seller, except to the extent Seller shall have assigned such deposits to Purchaser, in which case, Purchaser shall be debited and Seller shall be credited the amount of such assigned deposits.
10.6 Seller shall be responsible for all tenant improvement costs, tenant incentives and leasing commissions relating to the base term of the Navistar Lease or not disclosed by Seller to Purchaser, whenever same may be payable (now or in the future). Purchaser shall receive a credit against the Purchase Price at Closing in an amount equal to the then-unpaid costs, incentives and commissions which are the responsibility of Seller under the foregoing provision, and Seller shall retain responsibility for same to the extent not so credited at Closing.
10.7 Seller shall bear and pay the charges to comply with the terms of Paragraph 4.1.
10.8 Purchaser shall bear and pay all such revenues of the costs of the Investigations, including, without limitation, the preparation of any Phase I, the premium for the Title Policy (excluding any endorsements to the Title Policy which Seller has agreed in writing to provide and Purchaser in its sole and absolute discretion has agreed to accept (the “Seller Endorsements”)), all title charges incurred in connection with the Commitment and any update thereof, as well as any additional title insurance premium charged in connection with issuance of any loan policy(ies) of title insurance (and endorsements thereto or to the Title Policy, excluding the Seller Endorsements) and the cost of the Updated Survey.
10.9 Except as otherwise herein provided, each party shall be responsible for, and shall bear, any and all costs and expenses attributable incurred by either of them or their respective employees, agents and representatives in connection with the transactions contemplated hereby, including, without limitation, those of their respective attorneys, accountants and consultants, which obligations shall not merge into this Agreement or the Deed and shall survive the Closing or the termination of this Agreement, as applicable.
10.10 All costs relating directly to operations any escrow and/or closing services provided in connection with the transactions contemplated hereby shall be divided equally between the parties. All release and recording fees, as well as any and all state, county and/or local stamp and/or transfer taxes imposed on the sale contemplated by this Agreement, will be borne and paid for by Seller. All other items that customarily would be prorated in transactions similar to the transactions contemplated hereby, but that have not been addressed in this Agreement, will be prorated as of the Proration Date in accordance with standard Du Page County, Illinois closing practice(s).
10.11 All adjustments made pursuant to this Article 10 shall be paid in cash or credited against the cash portion of the Purchase Price at the Closing and, to the extent reasonably practicable, such prorations shall be made at the Closing. To the extent any such prorations cannot be made at the Closing, the same shall be adjusted and completed after the Closing as and when complete information shall become available. Seller and Purchaser agree to cooperate and use its commercially reasonable efforts to complete such prorations no later than thirty (30) days after the Closing Date. At ClosingSeller and Purchaser each shall use its commercially reasonable efforts prior to the Closing Date to prepare a schedule of prorations covering, STIamong other things, the Additional Hotel Subsidiaries and Southeastcurrent monthly rent, as prepaid rent, security deposits, utility charges, operating expenses, if applicable, shall provide and real property taxes, so that such prorations can be made at the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing DateClosing.
Appears in 1 contract
Closing Adjustments. (a) The cash portion Except as otherwise set forth in this Section 2.6, all revenues and expenses of the Purchase Price described in Section 6.1(aFacility applicable to the period of time before and after the Closing shall be allocated between the Sellers and the Buyer as provided herein. Pursuant to such allocation, the Sellers shall be entitled to all revenue (other than Accounts Receivable, Entrance Fee Receivables and receivables of the Health Center Operator) and the Development Site Purchase Price, as applicable, shall be increased, by:
(i) any cash on hand at responsible for all expenses for the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives period of ShoLodge and Prime on time up to but not including the Closing Date);
(ii) any , and the Buyer shall be entitled to all revenue generated by and shall be responsible for all expenses for the operation period of the Hotels through time from, after and including the night before Closing Date. Such allocations and adjustments shall be shown on the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue closing statement to be determined executed by representatives of ShoLodge and Prime the parties on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if with such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating supporting documentation as the parties hereto may reasonably require being attached as exhibits to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(aclosing statement) and the Development Site Purchase Price, as applicable, shall be decreased, by:
increase or decrease (i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(c) The intent of the foregoing is to credit or charge, as the case may be) the cash amount payable by the Buyer to the Sellers at Closing. All prorations shall be made on the basis of the actual number of days in the year and month in which the Closing occurs or in the period of computation. No prorations or allocations shall be made with respect to Entrance Fee Receivables, STIAccounts Receivable or receivables of the Health Center Operator, except to the extent specifically set forth in Section 2.6(c) of this Agreement.
(i) Without limiting the generality of the foregoing, the Additional Hotel Subsidiariesfollowing items of revenue and expense shall be allocated and prorated at Closing: utility charges; water and sewer charges; real estate taxes and all other public and governmental taxes, Southeast charges and assessments; charges for oil and heating services; charges under the Transferred Contracts; and assessments against the Real Property or the Development SubsidiariesFacility or its operations. Notwithstanding the foregoing, as applicable, the Buyer shall be responsible for establishing new utility accounts with all revenues and expenses respecting the Assets which are attributable its vendors to operations before be effective on the Closing Date and Date.
(ii) The Sellers shall be responsible for payments owing on deliveries made prior to the Closing Date. The Buyer shall be responsible for payments owing on deliveries made on or after the Closing Date.
(iii) The Sellers shall receive a credit for any prepaid expenses in connection with any Assumed Liabilities on or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STIThe Buyer shall receive a credit for that portion of any monthly fees paid to the Sellers or the Health Center Operator prior to the Closing Date under the Life Care Contracts, the Additional Hotel Subsidiaries and SoutheastHC Occupancy Agreements, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, or other contracts with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period residents that relate to periods from and after the Closing Date.
(b) The Buyer shall receive a credit against the Purchase Price for the amount of all accrued (vested or unvested) vacation, personal time, time off, holiday or sick leave for the Transferred Employees on the Closing Date. To the extent that any Transferred Employee is terminated by the Buyer (or its manager or lessee) as a result of the Buyer (or its manager or lessee) not receiving a satisfactory post-closing background check, drug test or license verification for such Transferred Employee, then the Buyer (or Buyer’s manager, lessee or other designee) shall promptly following such termination pay to the Sellers an amount equal to the
Appears in 1 contract
Sources: Asset Purchase Agreement (American Retirement Corp)
Closing Adjustments. (a) The cash portion Except as otherwise herein provided, the following items shall be paid, prorated and/or adjusted as of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be increased, by:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives close of ShoLodge and Prime business on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before day prior to the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing "Proration Date");, as follows:
(iii) amounts paid prior to Closing for any ad valorem 9.1 All real estate taxes and assessments relating all personal property taxes accruing with respect to the Real Property period ending on, but inclusive of, the Proration Date, and all penalties and interest thereon, and all certified and other special assessments affecting the Properties shall be paid in full by Seller (or credited to Purchaser) at Closing; provided, however, that, if any such certified and special assessments shall be pending or payable in installments, Seller only shall be responsible for paying the portion of such assessments accruing with respect to the period ending on, but inclusive of, the Proration Date.
9.2 Current real estate and personal property taxes shall be prorated as of the Proration Date, on account an "accrual" basis in accordance with the standard closing practice of the county in which the Property, with respect to which such item shall relate, is located. The parties hereby further do agree to re-prorate such real estate taxes promptly upon Purchaser's receipt of the actual tax bill for the tax year in questio▇. ▇n no event shall Seller be charged with or be responsible for any increase in such taxes resulting from the sale of the Interests or improvements made to the Properties after the Closing. Seller shall be entitled to retain the full amount of any period from and tax refund received by Purchaser or Seller after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating attributable to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (Closing, if such HPT Lease Guaranty Deposit is refund shall not returned from HPT and/or Landlord be owed to ShoLodge or STI);Tenants pursuant to any leases. Purchaser promptly shall deliver the full amount of such tax refund to Seller, if the same shall have been received by Purchaser. The foregoing shall not be merged into this Agreement and shall survive the Closing.
9.3 Any non-cash security deposits shall be assigned (viiand all consents necessary to effectuate such assignment shall have been obtained) any utility to Purchaser at the Closing, and Seller reasonably shall cooperate with Purchaser to change the named beneficiary under such security deposits, if, on the Proration Date, such deposits relating are not to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller be in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion name of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, Purchaser or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(c) The intent of the foregoing is to credit or chargeAero SeaTac, as the case may be, STIall at Seller's sole cost and expense). In the event that as of a Closing, Seller has not obtained all necessary consents or otherwise effectuated the Additional Hotel Subsidiariesassignment of any non-cash security deposits with respect to any Properties acquired by Purchaser at such Closing, Southeast or Seller shall use diligent commercially reasonable efforts to obtain such consents and cause such assignment to occur promptly after the Development Subsidiaries, as applicableClosing at Seller's expense. In addition, with respect to any such non-cash security deposits for which a consent has not been obtained or which has not been assigned as of the applicable Closing, if a tenant defaults under its lease and the landlord would have the right to apply any such non-cash security deposit, then Seller shall, upon Purchaser's written request, draw down on such non-cash security deposit and immediately deliver the proceeds therefrom to Purchaser and Purchaser agrees to indemnify, defend and hold Seller harmless against any Losses arising out of any claims by the applicable tenant arising as a result of the drawing down of such non-cash security deposit.
9.4 All of the following will be credited to Purchaser as of the Proration Date: (a) prepaid rent and rent paid for the balance of the month of the Closing, (b) cash security deposits made by Tenants, along with all revenues and expenses respecting the Assets which are attributable interest thereon that shall be due to operations before the Closing Date and such Tenants, but not including interest earned thereon that shall belong to credit Seller or chargeAero SeaTac, if any, received by Seller or Aero SeaTac, as the case may be, Prime prior to the Proration Date, (c) except as provided in Paragraph 6.6(b), the amount of any Landlord Obligations remaining unpaid as of (or with respect to rent abatements, the amount applicable to the period occurring after) the applicable Closing, and (d) utility costs, operating expenses, insurance costs, personal property expenses and real estate tax expenses (collectively, "Expense Contributions") that shall have been prepaid by Tenants. Any payment of rental obligations or Expense Contributions due, but not received, on the Proration Date, from Tenants, as well as any unbilled Expense Contributions accrued as of the Closing (collectively, the "Credit Items"), shall be paid by Purchaser to Seller as and when such amounts are collected from the applicable Tenants and after Purchaser is made current on all rental obligations and Expense Contributions due and payable following the Closing. Following the Closing Date, if Seller or Aero SeaTac shall receive any payments from any Tenant, all such payments, other than Credit Items, promptly shall be remitted to Purchaser, and Seller shall take all steps as reasonably shall be necessary to notify the remitting party that all future payments should be sent to Purchaser. Seller shall cooperate with Purchaser in its efforts to collect Credit Items, but shall not be required to take any direct action against any Tenant for such purpose (provided that, Seller shall be entitled to sue a Prime SubsidiaryTenant or take any other a▇▇▇ons to collect any Credit Items due to Seller (and not previously paid to Seller) so long as such suit or other action does not seek a termination of such Tenant's Lease or eviction of such Tenant). When actual Expense Contributions shall have become known, Purchaser shall bill each Tenant, pursuant to it▇ ▇▇ase, for the additional amount, if any, owed by such Tenant as a result of non-payment or underpayment of such Tenant's share of Expense Contributions. Upon the collection of such amounts, the same shall be prorated between Seller and Purchaser based on each such Tenant's share of the amount of the applicable Expense Contribution incurred by each party and the collections from each of such Tenants of such Expense Contributions by each party, through and including the Proration Date. The amount of any refund or credit due to any Tenant as a result of collection by Seller or Aero SeaTac prior to the Closing Date of payments by any Tenant for Expense Contributions, which shall exceed the actual amount of such Expense Contributions owed by such Tenant for the period prior to the Closing Date, shall be paid by Seller to Purchaser promptly after such Expense Contributions shall have been determined.
9.5 Seller shall (and Seller shall cause Aero SeaTac to) pay all expenses necessary to repair, operate and maintain the Properties, as the case may be, in accordance with the ordinary course of its business up to the Proration Date, any such expenses which are prepaid by Seller (to the extent attributable to the period after the Proration Date) as of the Proration Date shall be credited to Seller and/or Aero SeaTac, as the case may be, and Purchaser and/or an Approved Assignee shall be responsible to pay such expenses incurred subsequent to the Proration Date.
9.6 Meters for utility services payable by Seller or Aero SeaTac, as the case may be, shall be read on or immediately prior to the Proration Date, or as close to the Closing as shall be possible, if a reading on the day prior to the Closing cannot be obtained, and the amounts due, as disclosed by such readings, shall be paid by Seller or credited to Purchaser. Otherwise, all utility charges and billings shall be prorated using ▇▇▇ ▇▇▇l for the calendar month imme▇▇▇▇ely preceding the Proration Date. Any security or service deposits delivered by the Companies or Aero SeaTac to utility providers, and any interest required to be paid thereon, shall be and remain the sole property of Seller, and any refund of such security deposits shall be made directly to Seller, except to the extent such deposits shall have been assigned to Purchaser and/or the Approved Assignee(s) by Seller, in which case, Purchaser shall be debited and Seller shall be credited the amount of such assigned deposits.
9.7 Seller shall bear and pay (a) the charges to comply with the terms of Paragraph 3.1, (b) additional title insurance premiums charged in connection with issuance to a Lender of any loan policy(ies) of title insurance (and endorsements thereto), (c) all fees, costs and/or expenses, including, without limitation, mortgage recording taxes, if applicable, imposed in connection with, as applicable, with the (i) written consent of each Lender and each Ground Lessor, as the case may be, to the relevant transactions contemplated hereby, (ii) assumption of the Assumed Loans, the Loan Guarantees, the Ground Leases and/or the Ground Lease Guarantees, and/or (iii) release of all such revenues of the Loan Guarantors from all of the Loan Guarantees and/or all of the Ground Lease Guarantors from all of the Ground Lease Guarantees, all as contemplated hereby, including, without limitation, all assignment and/or assumption fees charged by any Lender or Ground Lessor or EDC.
9.8 Purchaser shall bear and pay all costs and expenses attributable incurred in connection with (a) the Investigations, including, without limitation, the preparation of any Phase I, (b) any Updated Survey and/or the issuance to operations any lender, other than a Lender, of any loan policy(ies) of title insurance (and endorsements thereto).
9.9 Except as otherwise herein provided, each party shall be responsible for, and shall bear, any and all costs and expenses incurred by either of them or their respective employees, agents and/or representatives in connection with the transactions contemplated hereby, including, without limitation, those of their respective attorneys, accountants and consultants, which obligations shall not merge into this Agreement and shall survive the Closing or the termination of this Agreement, as applicable.
9.10 All costs relating directly to any escrow and/or closing services provided in connection with the transactions contemplated hereby shall be divided equally between the parties. Any and all (a) premiums for the Title Policies and the title update charges in connection therewith, (b) state, county and local transfer, documentary and/or stamp taxes imposed regarding the transactions contemplated hereby, (c) recording fees and (d) other items that are customarily prorated in transactions similar to the transactions contemplated hereby, but have not been herein addressed, will be prorated as of the Proration Date in accordance with the standard closing practice of the county in which the Property, with respect to which such item shall relate, is located as such standard closing practice is set forth in the Side Letter Agreement.
9.11 Any non-delinquent bonds that relate to items other than real estate taxes, that, as of the Closing Date, shall be a current lien against any of the Properties shall be prorated as of the Closing Date.
9.12 All adjustments made pursuant to this Article 9 shall be paid in cash or credited against the cash portion of the Purchase Price at the Closing. All adjustments made pursuant to this Article 9 shall be made on the basis of a 365 day year and, to the extent reasonably practicable, such prorations shall be made at the Closing. To the extent any such prorations cannot be made at the Closing, the same shall be adjusted and completed after the Closing as and when complete information shall become available. Seller and Purchaser each agrees to cooperate and use its commercially reasonable efforts to complete such prorations no later than thirty (30) days after the Closing Date. At ClosingSeller and Purchaser each shall use its commercially reasonable efforts prior to the Closing to prepare a schedule of prorations that shall cover current monthly rent, STIprepaid rent, the Additional Hotel Subsidiaries and Southeastsecurity deposits, as utility charges, operating expenses, if applicable, shall provide and real property taxes, so that such prorations can be made at the Prime HPT Subsidiary Closing.
9.13 Subject to the provisions of Paragraph 12.9, each party hereby agrees to defend, indemnify and forever hold harmless the Prime Texas Subsidiaryother, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after against any Losses that such other party shall sustain by reason of the Closing Datefailure of the indemnifying party to pay the amounts it shall be required to pay or to take the actions it is required to take on a timely basis, pursuant to this Article 9, which indemnifications, defenses and hold harmless agreements shall not be merged into this Agreement and shall survive the Closing.
Appears in 1 contract
Sources: Sale Agreement (Amb Property Lp)
Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, Closing adjustments shall be increased, by:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives made as of ShoLodge and Prime 12:00:01 A.M. on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. day of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STIthe “Adjustment Date”);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, Seller shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments entitled to all revenues from the Property relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Adjustment Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) Buyer shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year entitled to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(c) The intent of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable relating to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Adjustment Date. Seller shall be responsible for the payment and discharge of all expenses, obligations and liabilities relating to the Property arising or accruing prior to the Adjustment Date. Seller shall pay and discharge and defend, indemnify and hold harmless Buyer from and against all such expenses, obligations and liabilities.
(c) Revenues and expenses that are allocable to a period of time falling in part on or before, and in part after, the Adjustment Date shall be apportioned between such respective portions of the period in question according to the number of days in each, so that Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxes, real property taxes, water and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges relating to or payable in connection with the use, occupancy, maintenance, ownership and operation of the Property, shall be adjusted and prorated on the basis of the fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date prior to the Closing Date through the Adjustment Date shall be apportioned on the basis of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Date. Unmetered water charges shall be apportioned on the basis of the charges therefor for the same period in the preceding calendar year, but applying the current rate thereto.
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by any Tenant to Seller under the Leases, if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted on the Closing Date. Buyer shall remit the appropriate portion of the same to Seller, as, when and if received after the Closing Date, provided that all Rents received from and after the Closing Date shall be deemed to represent Rents most recently due and payable, in inverse order of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated for such period promptly after receipt thereof by Buyer or Seller.
(iii) Fuel, if any, that has been purchased by Seller shall be adjusted and prorated on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall be entitled to request a return of said deposits from the vendors or utility companies, in which event it shall not receive such a credit at the Closing.
(v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use of the Property after the Closing Date.
(d) Seller shall be responsible for all income, franchise and other taxes imposed on Seller, or its income, or on the Property (“Taxes”) for all taxable periods or portions of taxable periods, ending before the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for all Taxes imposed on the Property or Buyer’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”). Seller shall indemnify and hold Buyer harmless from and against all liability from Taxes attributable to the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable in whole or in part to the Pre-Closing Period, Buyer shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of taxes.
(e) The provisions of this Section 5 shall survive the closing of the sale of the Property hereunder (the “Closing”).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Clarion Partners Property Trust Inc.)
Closing Adjustments. (a) The cash portion following shall be prorated, between Seller and Buyer as of 12:00 AM on the Closing Date (so that Buyer will be debited all taxes and other expenses, and be credited with all rents, accruing as of the Purchase Price described in Section 6.1(aClosing Date) on the basis of the actual number of days elapsed over the applicable period) and shall take into account the Development Site Purchase Price, as applicable, shall be increased, bypercentage of such revenues or expenses attributable to the Property:
(i) All real estate taxes, water charges, sewer rents, vault charges and assessments on the Property on the basis of the fiscal year for which assessed. If any cash assessments on hand at the Hotels when a Prime Subsidiary takes possession (any such cash Property are payable in installments, then the installment for the current period shall be counted by representatives prorated, with Seller paying its share of ShoLodge any installments due before the Closing Date and Prime on Buyer assuming the obligation to pay its share of any installments due after the Closing Date);.
(ii) Subject to Section 8(b) of this Agreement, all fixed and base and minimum rent and regularly scheduled items of additional rent under the Leases (including any revenue generated by the operation of the Hotels through reimbursements for taxes and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge common areas operating costs), and Prime on the Closing Date);other tenant charges if, as and when received.
(iii) amounts paid prior Expenses and payments under Service Contracts which Buyer shall elect to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;assume.
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes)Fuel, if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;at Seller's cost therefor.
(v) amounts paid prior to Closing under any Operating AgreementUtilities not payable directly by tenants, the HPT Lease (including, if applicablewithout limitation, as amendedtelephone, 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 pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings if current meter readings are available, on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. basis of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary termsreadings.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due Rents under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, Leases which are delinquent as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall not be calculated based prorated on the "Total Hotel Sales" (as defined Closing Date. Buyer shall include such delinquencies in its normal billing and shall diligently pursue the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined collection thereof in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of good faith after the Closing Date (ShoLodge but Buyer shall use commercially reasonable efforts not be required to cause meters litigate or declare a default in any Tenant Lease). Subject to be read as the terms of the immediately succeeding sentence, to the extent rents are collected by or on behalf of Buyer on or after the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge payments shall be applied first toward to the seller in rents that shall then be due and payable with respect to rents for months after the jurisdiction Closing, second to the rents for the month in which the Real Closing occurs, and third to any delinquent rents owed with respect to months prior to the Closing, with Seller's share thereof being promptly delivered to Seller by Buyer. If percentage rents are collected by or on behalf of Buyer on or after the Closing Date, such percentage rents shall be allocated to the period to which they relate irrespective of the provisions of the immediately preceding sentence and appropriate portions thereof shall be applied to Buyer and Seller in proportion to the duration of such party's ownership of the Property is situatedduring such period, on customary termswith Seller's share thereof being promptly delivered to Seller by Buyer. Seller hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to Seller, which right shall include the right to continue or commence legal actions or proceedings against any tenant; provided, however, that Seller shall not, following the Closing, commence legal actions or proceedings for collection of rents against any tenant while such tenant remains a tenant at the Property. Buyer shall reasonably cooperate with Seller in any collection efforts hereunder (but shall not be required to litigate or declare a default under any Tenant Lease). With respect to delinquent rents and any other amounts or other rights of any kind respecting tenants who are no longer tenants of the Property at any time following the Closing Date, Seller shall retain all rights relating to its share thereof.
(c) The intent amount of any security deposits held by Seller under the Leases shall be credited to Buyer, and thereafter, Buyer shall be responsible for same.
(d) If any of the foregoing is items described in this Section 8 hereof cannot be apportioned at the Closing because of the unavailability of information as to credit the amounts which are to be apportioned or chargeotherwise, or are incorrectly apportioned at Closing or subsequent thereto, such items shall be apportioned or reapportioned, as the case may be, STI, as soon as practicable after the Additional Hotel Subsidiaries, Southeast Closing Date or the Development Subsidiariesdate such error is discovered, as applicable.
(e) If the Closing shall occur before a real estate or personal property tax rate or assessment is fixed for the tax year in which the Closing occurs, with all revenues the apportionment of taxes at the Closing shall be upon the basis of the tax rate or assessment for the preceding fiscal year applied to the latest assessed valuation. Promptly after the new tax rate or assessment is fixed, the apportionment of taxes or assessments shall be recomputed and expenses respecting any discrepancy resulting from such recomputation and any errors or omissions in computing apportionments at Closing shall be promptly corrected and the Assets which are attributable to operations before proper party reimbursed.
(f) If after the closing, the parties discover any errors in adjustments and apportionments, same shall be corrected as soon after their discovery as possible. The provisions of this Article 8 shall survive the closing, provided that no adjustments shall be made later than one (1) year after the Closing Date unless prior to such date the party seeking the adjustment shall have delivered a written notice to the other specifying the nature and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all basis for such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Dateclaim.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cedar Shopping Centers Inc)
Closing Adjustments. (a) The cash portion income and expenses arising from the operation of the Purchase Price described in Section 6.1(a) Facilities prior to the date of Closing shall be for the account of Seller and the Development Site Purchase Priceincome and expenses arising from the operation of the Facilities on or after the date of Closing shall be for the account of Buyer. On the date of Closing, Seller and Buyer shall determine the amount of all such items, prorated as of the date of Closing (the "Closing Prorations"). Seller shall be entitled to all payments applicable to resident housing and care prior to the date of Closing and Seller shall be responsible for all expenses arising or incurred prior to the date of Closing. If funds belonging to Seller or any payments applicable to the operation of the facilities prior to the date of Closing payment are received by Buyer, those funds shall be transmitted by Buyer to Seller promptly. If any payments applicable to the operation of the Facilities on or after the date of Closing have been or are received by Seller, those funds shall be transmitted by Seller to Buyer promptly. Unless otherwise agreed to by the parties, Seller shall pay, at time of Closing, all of its incurred and deemed expenses to date of Closing, including without limitation all salaries, wages, and other charges and expenses which may properly be accrued to date of Closing, except as provided in subsection (b), below. Seller and Buyer agree that should Buyer be compelled to pay any debts or bills properly payable by Seller, Seller shall promptly pay such amount to Buyer.
(b) Notwithstanding the foregoing, Buyer shall assume the obligations for accrued and vested vacation and personal leave time pay, as applicableof the date of Closing, of employees of Seller that become employees of Buyer, to the extent that Buyer has received a credit therefor in the Closing Prorations. Seller shall provide to Buyer, within fifteen (15) days following the execution of this Agreement, a schedule of all employees at the Facilities, their currently applicable wage rates, and their deemed vacation pay as of the date reflected thereon and as projected to be as of the date of Closing.
(c) Costs and expenses associated with the sale of Seller's Assets to Buyer shall be increased, byallocated between the parties as follows:
(i) any cash on hand at Seller shall pay the Hotels when a Prime Subsidiary takes possession (any such cash state deed tax and Buyer shall be counted by representatives pay the recording and conservation fees due and payable for recording of ShoLodge and Prime on the Closing Date)warranty deed given to transfer to Buyer title to the Real Property;
(ii) any revenue generated by Seller shall pay the operation cost of the Hotels through real property title insurance commitments and the UCC Searches, and provide Buyer with the Surveys that Seller presently has, and Buyer shall pay the cost of the Owner's and Lender's Title Policies, including the night before cost of any title endorsements to the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined Title Policies required by representatives of ShoLodge and Prime on the Closing Date)Buyer or Buyer's lender;
(iii) amounts paid prior to Closing for any ad valorem real estate taxes Buyer shall pay the mortgage registration tax and assessments relating to the Real Property on account cost of any period from recording fees for recording the First and after 12:01 a.m. of the Closing DateSecond Mortgages and UCC-1 Financing Statements;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income Buyer and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing DateSeller shall each pay their own attorneys' fees;
(v) amounts paid prior to Closing under Buyer and Seller shall pay any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Dateescrow fees equally;
(vi) accrued but unpaid interest earnings on Buyer will pay for the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. cost of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" environmental assessment (as defined below). In addition, in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined event that Seller elects to cure any problems identified in the HPT Lease) environmental assessment in accordance with Section 14(b), Seller will pay for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period cost of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to curing such employees upon termination of employmentproblems; and
(vii) In the event Seller elects to cure any other charges or fees customarily prorated by a charge objections Buyer makes to the seller items described in the jurisdiction in which the Real Property is situated, on customary terms.
(c) The intent of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast Title Commitments or the Development SubsidiariesUCC Searches, as applicable, with all revenues and expenses respecting then Seller shall pay the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all cost of curing such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Dateobjections.
Appears in 1 contract
Sources: Purchase Agreement (Care First Inc)
Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, following items shall be increasedpaid, by:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amendedprorated, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. adjusted as of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);in the manner hereinafter set forth:
(viia) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or PrimeAll real estate Taxes, as applicable; and
(viii) any other charges well as Taxes assessed on Terminal Inventory, due and owing on or fees customarily prorated before the Closing Date, all penalties and interest thereon, and all special assessments affecting the Terminals, whether payable in installments or not, shall be paid in full by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary termsSeller.
(b) The cash portion of Current real estate Taxes, assessments and charges for the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, Terminals shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, prorated as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in upon the HPT Lease) shall be calculated based on tax year of the "Total Hotel Sales" (as defined in applicable taxing authority, without regard to when said Taxes are payable, so that the HPT Lease) for portion of current Taxes allocable to the current period from the beginning of such year to the Closing Date compared to "Base Total Hotel Sales" (as defined in shall be the HPT Lease) for responsibility of Seller and the similar period portion of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided current Taxes allocable to the Hotels portion of such year from the Closing Date to the end of such year shall be the responsibility of Buyer. These Taxes will be prorated -57- based on the current assessed value for any 2004. A post-closing adjustment will be made to reflect accurately Seller's responsibility for that portion of real estate Taxes attributable to the period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due , and Buyer's responsibility for that portion of real estate Taxes attributable to employees the period following the Closing Date. The post-closing adjustment will be made upon receipt by Buyer of the Hotels who are hired relevant tax bill from the appropriate Governmental Authorities, but no later than ▇▇▇ year following the Closing Date. Any post-closing adjustment proposed by Prime or a Prime Subsidiary, as applicable, which are not paid Buyer will be supported by STI, ShoLodge or an Affiliate copies of ShoLodge directly said tax bills along with other reasonable documentation to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge be provided to the seller in the jurisdiction in which the Real Property is situated, on customary termsSeller.
(c) Seller shall be responsible for the cost of utilities for each Terminal up to Closing and Buyer shall be responsible for such costs thereafter.
(d) Buyer shall bear and pay all title insurance premiums and charges.
(e) Buyer shall bear and pay all realty transfer fees, recording costs and Taxes associated with the conveyance of the Real Property, the Improvements and the Personal Property.
(f) Seller and Buyer shall each pay their own respective legal fees and expenses and the cost of performance of their respective obligations hereunder.
(g) All amounts due Seller under any assignable Revenue-Generating Contract shall be prorated as of the Closing Date upon the payment cycle established under such Revenue-Generating Contract so that the portion the amounts due Seller from the beginning of such payment cycle to the Closing Date will be credited to Seller at Closing.
(h) The Parties shall make all other adjustments necessary to effectuate the intent of the foregoing is to credit or charge, Parties as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting set forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Datein this Agreement.
Appears in 1 contract
Sources: Terminal Purchase and Sales Agreement (Buckeye Partners L P)
Closing Adjustments. (a) The cash portion Unless otherwise provided herein, the following items shall be adjusted between Buyer and Seller as of the Purchase Price described in Section 6.1(acut-off time for Operator's accounting period on January 2, 1998 (the "Cut-Off Time"):
(1) and the Development Site Purchase Price, as applicable, Buyer shall be increased, by:
(i) credited with any cash on hand at deposits or advance payments for room reservations or functions for any period after the Hotels when a Prime Subsidiary takes possession (any such cash Cut-Off Time. Seller shall be counted credited with any refundable deposits held by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation utility, governmental agency or service contractor with respect to any of the Hotels through and including which the night before utility, agency or contractor verifies in writing are transferable to Buyer or are held in the Closing Date arising from accounts receivable name of the Hotel. Buyer shall be obligated to substitute its own bond for any bond held by a utility with respect to guests any of the Hotels then Hotels.
(2) Net guest room revenue of each Hotel, whether in cash or in accounts receivable, arising from occupancy which in for the normal course night beginning on January 2, 1998 and ending on January 3, 1998 shall be credited to Seller.
(3) Seller shall retain all room rent receivables existing as of business would be received the Cut-Off Time. Buyer and Seller shall cooperate with Operator as reasonably required to collect such receivables after the Closing (Cut-Off Time. Buyer shall direct Operator to pay to Seller all such receivable amounts immediately upon receipt by Operator. All amounts collected shall be applied to the amount of such revenue to be determined invoice designated by representatives of ShoLodge and Prime on the Closing Date);payor or, if not designated, the oldest receivable then outstanding for the same account party.
(iii4) amounts paid prior to Closing for any ad valorem real Real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. personal property taxes shall be pro-rated in escrow as of the Closing Date;
(iv) personal property taxes, gross . Gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes occupancy taxes, however denominated, imposed by any taxing authority on any of the Hotels shall be prorated between Buyer and Seller as of the Cut-Off Time.
(but excluding 5) Block protect turned off here.All other items of income and franchise taxes)expense including, if anywithout limitation, relating room rents receivable from current guests of each Hotel as set forth in the guest ledger for periods prior to the Assets night preceding the Cut-Off Time, water, sewer, electricity and gas charges, management fees, reimbursements to Operator under the Management Agreements, items of expense under maintenance contracts, service contracts,equipment and other capital leases, rental contracts or equipment or telephone contracts, advertising contracts and cleaning contracts for all periods prior tothe Cut-Off Time shall be paid prior to Closing or by Seller, as appropriate. Buyer shall be entitled to receive all such items of income and shall pay all such expensesattributable to the period on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary termsCut-Off Time.
(b) The cash portion of the Purchase Price described Seller shall be entitled to all cash, bank account balances (including, without limitation, all funds in Section 6.1(aany capital reserve accounts) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments vending machine receipts relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated Hotel in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read existence as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of Cut-Off Time. Buyer shall be responsible for establishing its own bank accounts for the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, on customary termsHotel.
(c) The intent Buyer shall receive a credit at closing in the amount of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments $10,000 for the period purpose of upgrades to the front entrance to the Ontario Hotel.
(d) In the event the closing occurs on a date prior to January 2, 1998, Buyer shall receive an estimated net income credit of $20,000 for each day elapsed from and after the Closing Date to and including January 2, 1998. In the event the closing occurs after January 2, 1998, Seller shall receive an estimated net income credit of $20,000 for each day elapsed from and after January 2, 1998 to and including the Closing Date. The actual amount of the net income credit will be determined as part of the post-closing adjustment described in subsection (e) below.
(e) The provisions of this section 7.3 may not specify all adjustments properly to be made in a transaction of this nature. Representatives of Buyer and Seller shall perform all of the adjustments, including any not specifically referred to herein, which are appropriate and usual. The adjustments hereunder shall be calculated or paid in an amount based upon a fair and reasonable estimated accounting performed and agreed to by representatives of Seller and Buyer at the closing. Subsequent final adjustments and payments shall be made in cash or other immediately available funds as soon as practicable after the Closing Date, based upon an agreed accounting performed by representatives of Seller and Buyer. In the event the parties have not agreed with respect to the adjustments required to be made pursuant to this section 7.3 within such 120-day period, upon application by either party, ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ shall determine any such adjustments which have not theretofore been agreed to between the parties, and such determination shall be final and binding between Seller and Buyer. The charges of ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ shall be borne in equal shares by Seller and Buyer.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Metric Partners Growth Suite Investors Lp)
Closing Adjustments. (a) The cash portion following adjustments shall be made at Closing:
4.7.1 General real estate taxes applicable to any of the Purchase Price described Real Property due and payable in Section 6.1(a) and the Development Site Purchase Priceyear of Closing, as applicabletogether with all special assessments payable therewith, shall be increased, by:
(i) any cash prorated between Seller and Purchaser on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives daily basis as of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable based upon a calendar fiscal year, with Seller paying amounts allocable to the period on and prior to the Closing Date and Purchaser being responsible for amounts allocable subsequent thereto.
4.7.2 With respect to guests the Ground Leased Sites, any and all rents, additional rents, operating expenses, real estate taxes, and any other amounts owed or credited pursuant to the applicable ground leases for each of the Hotels then in occupancy which in Ground Leased Sites (collectively, the normal course of business would “Ground Leases”) shall be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge prorated between Seller and Prime Purchaser on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. a daily basis as of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income with Seller retaining the charges and franchise taxes), if any, relating credits allocable to the Assets paid period on and prior to the Closing on account of any period from Date and after 12:01 a.m. of Purchaser being responsible for the charges and credits allocable subsequent to the Closing Date;.
(v) amounts paid prior 4.7.3 Personal property taxes applicable to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Personal Property due and payable in the year of Closing Date;
(vi) accrued but unpaid interest earnings shall be prorated between Seller and Purchaser on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. a daily basis as of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating based upon a calendar fiscal year, with Seller paying amounts allocable to the Assets which are transferred period on and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit prior to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) Closing Date and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid Purchaser being responsible for amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid allocable subsequent to the Closing Date), .
4.7.4 Purchaser shall assume all special assessments (and charges in the HPT Lease (including, if applicable, as amended, nature of or pursuant in lieu of such assessments) due and payable with respect to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of following the Closing Date (for with respect to any of the Real Property.
4.7.5 Purchaser shall pay all sales tax due regarding this purpose "Additional Rent" (as defined in transaction.
4.7.6 Seller shall pay all state deed tax or any transfer taxes or fees regarding the HPT LeaseDeeds to be delivered by Seller to Purchaser or the conveyance of the Real Property to Purchaser at Closing. Purchaser shall pay any mortgage registry tax or any similar taxes or fees regarding any mortgage(s) shall be calculated based given by Purchaser on the "Total Hotel Sales" Real Property in connection with this transaction.
4.7.7 Purchaser shall pay the cost of recording all documents, including the Deeds and Ground Lease Assignments.
4.7.8 Seller will pay all costs associated with the issuance of the Commitments.
4.7.9 Seller shall pay all premiums required for a standard owner’s title insurance policies, and Purchaser shall pay all premiums required any mortgagee’s title insurance policies and any extended owner’s title insurance coverage, including any endorsements issued in connection with such policies.
4.7.10 Seller and Purchaser shall each pay one half (as defined in the HPT Lease1/2) for the current year of any Closing fee payable to Title Company with respect to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Leasetransaction(s) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); andcontemplated by this Agreement.
(v) unpaid rates4.7.11 All utility expenses, rents and charges for sewerincluding water, waterfuel, gas, electricity, telephone telephone, sewer, trash removal, heat and other utility services furnished to or provided to for the Hotels for any period prior to 12:01 a.m. each of the Properties paid by Seller shall be prorated between Seller and Purchaser on a daily basis as of the Closing Date, with Seller paying amounts allocable to the period on and prior to the Closing Date (ShoLodge shall use commercially reasonable efforts and Purchaser being responsible for amounts allocable subsequent to cause the Closing Date. Seller agrees to have all meters with respect to be any such utilities read as of the Closing Date.
4.7.12 Seller shall be responsible for all leasing commission, tenant allowances, tenant improvement costs and free rent periods applicable to the Leases (collectively, “Leasing Costs”);
, if any, for any Leases (viincluding amendments, extensions or renewals thereof) accrued but unpaid benefits due executed prior to employees the Effective Date, and Purchaser shall be responsible for all Leasing Costs for Leases executed on or after the Effective Date; provided that Purchaser shall be responsible for Leasing Costs payable in connection with an extension and amendment of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge Fairview Health Services Leases executed prior to the seller Effective Date if Purchaser has provided its prior approval to the material terms thereof (including the amount of the commissions payable in connection therewith) prior to the jurisdiction in which the Real Property is situated, on customary termsEffective Date.
(c) The intent 4.7.13 All other operating costs of the foregoing is to credit or charge, Properties shall be prorated between Seller and Purchaser on a daily basis as of the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicableClosing Date, with all revenues Seller paying amounts allocable to the period on and expenses respecting the Assets which are attributable prior to operations before the Closing Date and Purchaser being responsible for amounts allocable subsequent to the Closing. To the extent any operating expenses of the Properties (including real estate taxes and special assessments) are reimbursable by tenants under the Leases, Purchaser shall pay to Seller the amount of such operating expenses actually paid by Seller and reimbursable by tenants under the Leases but not yet reimbursed as of the Closing Date as and when collected from the applicable tenants following Closing. To the extent any reconciliation of operating expenses and other amounts payable by tenants under their Leases for the period prior to Closing results in amounts being due, reimbursed or credited to such tenants, Seller shall reimburse Purchaser for such amounts within ten (10) business days of notice thereof from Purchaser. Notwithstanding the foregoing, to the extent Seller is aware as of the Closing Date of any overcharge to tenants for reimbursable expenses payable with respect to the period prior to Closing, Seller shall instead credit Purchaser for such amounts at Closing and Purchaser shall thereafter be responsible for reimbursing or chargecrediting such amounts to the applicable tenants. Following Closing, Seller shall reasonably cooperate with Purchaser in the preparation of any required cost reconciliation with respect to the tenants under the Leases for periods prior to the Closing Date.
4.7.14 All rent and other charges payable by tenants under the Leases and collected by Seller shall be prorated between Seller and Purchaser on a daily basis as of the case may be, Prime or a Prime Subsidiary, as applicableClosing Date, with all such revenues Seller retaining the charges, payments and expenses attributable credits allocable to operations the period on and after prior to the Closing Date and Purchaser receiving the charges, payments and credits allocable subsequent to the Closing Date. At If at Closing a tenant is delinquent in any payment required under its Lease for period prior to the Closing Date, then, to the extent Purchaser receives rent amounts from such tenants after Closing, STIPurchaser shall pay such amounts in excess of the rent and other amounts then owing to Purchaser to Seller within ten (10) business days of receipt. Purchaser shall use reasonable efforts to collect any such delinquent amounts.
4.7.15 Seller shall pay to Purchaser all security deposits under the Leases to the extent collected or held by Seller.
4.7.16 Except as expressly provided herein, the Additional Hotel Subsidiaries Seller and Southeast, as applicable, Purchaser shall provide the Prime HPT Subsidiary each pay its own attorneys’ fees incurred in connection with this transaction.
4.7.17 Seller shall be responsible for all brokerage fees and commissions payable to BMO Capital Markets and/or CBRE arising out of this Agreement and the Prime Texas Subsidiary, as applicable, transactions contemplated herein.
4.7.18 Purchaser shall be responsible for making any deposits required with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period utility companies from and after Closing. If any of the amounts under this Section 4.7 cannot be calculated with complete precision at Closing because the amount or amounts of one or more items included in such calculation are not then known, then such calculation shall be made on the basis of the reasonable estimates of Seller and Purchaser as soon as reasonably possible after the Closing Datebut in no event later than ninety (90) days after Closing, subject to prompt adjustment (by additional payment or refund, as necessary) when the amount of any such item or items become known. This Section 4.7 shall survive Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Investors Real Estate Trust)
Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, Prorations shall be increased, by:
(i) any cash made between Seller and Purchaser on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read per diem basis as of the Closing Date);
(vi) accrued but unpaid benefits due to employees . The Closing Date shall be a day of income and expense for Purchaser. The following items shall be prorated and adjusted between Seller and Purchaser as of the Hotels who are hired Closing Date, except as otherwise specified:
9.1 All rents and other amounts paid by Prime or a Prime Subsidiarythe Tenants under the Leases (collectively, "Rent"), for the month of Closing shall be prorated as applicableof the Closing Date based on the respective number of days of ownership of Seller and Purchaser for such month. If the Closing shall occur before all of the Rents have actually been paid for such month, the apportionment of the Rents shall be upon the basis of the Rents actually received by Seller. Rents in arrears will not be prorated, but Seller's share thereof shall be promptly remitted to Seller by Purchaser if and when collected by Purchaser. Monies received by either party from Tenants after the Closing Date shall be applied in the chronological order in which are they accrue.
9.2 To the extent not paid by STIdirectly by Tenants, ShoLodge the parties will coordinate to transfer billing for water, electricity, sewer, gas, telephone and other utilities charges as of the Closing Date, and/or prorate such items if such billing transfers cannot be accomplished on Closing. Any security deposits or an Affiliate similar items paid to utility providers by Seller shall remain the property of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, on customary termsSeller.
(c) The intent 9.3 Real estate taxes shall be prorated as of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date on a cash, rather than accrual basis, based on the last ascertainable tax ▇▇▇▇ and such proration shall be final.
9.4 All unapplied balances of security deposits under the Leases held by Seller shall be credited to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations Purchaser on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Date.
Appears in 1 contract
Sources: Industrial Building Lease
Closing Adjustments. (a) The cash portion following items of income and expense shall be adjusted as of midnight of the Purchase Price described in Section 6.1(a) and day immediately preceding the Development Site Purchase Price, as applicable, shall be increased, bydate of Closing:
(i) any cash on hand at Real estate taxes with respect to the Hotels when a Prime Subsidiary takes possession (any such cash Property. Assessments, if any, for improvements to the Property completed prior to the date of Closing, whether assessment therefor has been levied or not, shall be counted adjusted as of the date of Closing and thereafter assumed by representatives of ShoLodge and Prime on the Closing Date);Purchaser.
(ii) any revenue generated by the operation of the Hotels through Fuel, water and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge sewer service charges and Prime on the Closing Date);charges for oil, electricity, telephone and all other public utilities.
(iii) amounts paid prior to Closing for any ad valorem real estate taxes Rental and assessments relating to the Real Property on account of any period all other income (including common area charges and other "pass-throughs") received from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;tenants.
(vi) accrued but unpaid interest earnings on All charges payable pursuant to Assumed Contracts for the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. provision of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating services to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary termsProperty.
(b) The cash portion If meters measure the consumption of water, gas and/or electric current at the Purchase Price Property by Seller (as opposed to by tenants thereof), Seller shall use reasonable efforts to cause such meters to be read on the day immediately preceding the date of Closing and shall pay all utility bills resulting therefrom promptly upon receipt thereof. Purchaser shall have the right to escrow a reasonable sum to insure payment in full of Seller's obligation to pay the water ▇▇▇▇ described in Section 6.1(a) above. In making the adjustments required by this subsection, Seller shall receive credit for all prepaid expenses and similar items that are due on or after the Development Site Purchase Pricedate of Closing, as applicable, and Seller shall be decreasedcharged with any unpaid charges for the period prior to the date of Closing. No adjustment shall be made for rents, by:
(i) any Advance Payments retained by STIincluding all items of additional rent such as common area maintenance charges, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating other charges (collectively and individually, the "Charges"), that are past due as of the date of Closing, but Purchaser shall exercise reasonable efforts following the date of Closing to collect any such unpaid rents and charges. In the Real event that amounts are collected by Purchaser (after the date of Closing) from any tenant of the Property on account whose lease obligations are past due as of any the date of Closing, Purchaser shall first apply such sum(s) against the amount then currently due Purchaser, and then pay to Seller, from such collected funds, the balance owed Seller for the period prior to 12:01 a.m. the date of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes)Closing, if any, relating . The obligation of the Purchaser set forth above to pay any balance of collected funds to Seller for the Assets payable on account of any period prior to 12:01 a.m. the date of Closing shall survive Closing. Seller shall have the right after the date of Closing to commence an action against any tenant of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts Property to cause all collect amounts due under the Operating Agreements Seller from any such tenant with respect to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period periods prior to 12:01 a.m. Closing, provided that Seller shall not be entitled to dispossess any such tenant as a result of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, on customary termsaction.
(c) The intent Seller shall use all reasonable efforts to deliver to Purchaser, at least five (5) business days prior to the date of Closing, a schedule depicting the adjustments required by this subsection (including a draft settlement statement to be executed by the parties at Closing), and Purchaser and Seller shall attempt to confirm to their mutual satisfaction all such amounts no later than two (2) business days prior to the date of Closing.
(d) Within sixty (60) days following the Closing, the Seller and Purchaser will cooperate in preparing (including allowing Seller or its agent access to the Property and its records related thereto) a final report to Purchaser setting forth the final determination of all items included on the Settlement Statement. In the event that, at any time within said sixty (60) day period, either party discovers any items which should have been included in the Settlement Statement but were omitted therefrom, such items shall be adjusted in the same manner as if their existence had been known at the time of the preparation of the Settlement Statement. The foregoing is limitation shall not apply to credit or chargeany item which, as the case may beby its nature, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for cannot be finally determined within the period from and specified. However, no further adjustments shall be made in any event beyond one (1) year after the Closing DateClosing.
Appears in 1 contract
Closing Adjustments. 6.1. The following are to be prorated or adjusted (a) The cash portion of as appropriate), if feasible, at the Purchase Price described in Section 6.1(a) and the Development Site Purchase PriceClosing, as applicable, shall be increased, by:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime 11:59 P.M. on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after day immediately preceding the Closing (the amount of such revenue to be determined by representatives of ShoLodge "Adjustment Date"):
6.1.1. All collected rent and Prime other collected income (and any applicable state or local tax on rent) under Leases in effect on the Closing Date or otherwise from the Property or any portion thereof shall be prorated. Seller shall be charged with any rent and other income collected by Seller before Closing but applicable to any period of time after Closing. Uncollected rent and other income shall not be prorated. Purchaser shall apply rent and other income from tenants that are collected after the Closing first to the obligations then owing to Purchaser for its period of ownership and to costs of collection, remitting the balance, if any, to Seller. Any prepaid rents for the period following the Closing Date shall be paid over by Seller or otherwise credited to Purchaser. Purchaser will make reasonable efforts, without suit, to collect any rents applicable to the period before the Closing Date);
. Seller may pursue collection as to any rent not collected by Purchaser within 6 months following the Closing Date provided that Seller shall have no right to pursue collection efforts against any tenant while in occupancy of an apartment at the Property. In the event that any tenant pays its rent via an ACH or other automatic debit system, Seller shall cancel such automatic payments at Closing; provided, however, in the event that an automatic rent payment is erroneously forwarded to Seller after Closing, Seller, shall remit such payment to Purchaser in accordance with Section 6.2. For purposes of this Section 6.1.1, the terms "rent" and “income” excludes application fees, administrative fees, non-refundable deposits, non-sufficient funds fees, late fees, resident property damage fees to the extent repairs have been completed, credit-card/online payment fees, clubhouse rental (iiifor usage prior to Closing) amounts paid or other non-rental related Tenant charges related to periods prior to Closing and not customarily prorated in similar transactions; provided however that Tenant utility reimbursements shall be treated as income, and amounts received after Closing to be applied to amounts due to Seller for any ad valorem real unpaid period prior to Closing (not to exceed 60 days).
6.1.2. Real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes“Taxes”), if any, relating to the Assets paid prior to Closing on account of any period from including penalties and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicableinterest, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, prorated as applicable;
(ii) unpaid ad valorem real estate taxes follows: Seller shall pay all Taxes which became due and assessments relating to the Real Property on account of any period payable prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating and a Permitted Exception on account of any period prior to 12:01 a.m. prorata share of the Taxes becoming due and payable after the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) Taxes which are a lien for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in Closing, even if such Taxes and assessments are not yet due and payable. All prorations shall be based upon the HPT Lease)); and
(v) unpaid most recent available tax rates, rents assessments and charges for sewer, watervaluations.
6.1.3. Electric, gas, electricitywater and sewer charges on the basis of the most recent bills available, telephone and other utility services provided but if there are meters on the Property, Seller, to the Hotels for any period prior to 12:01 a.m. of extent the Closing Date (ShoLodge same is obtainable, shall use commercially reasonable efforts to cause meters to be read furnish a reading effective as of the Closing Adjustment Date);
(vi) accrued but unpaid benefits due , or if not so obtainable, to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are date not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge more than 15 days prior to the seller in Adjustment Date, and the jurisdiction in which unfixed meter charges based thereon for the Real Property is situatedintervening period shall be apportioned on the basis of such last reading. Upon the taking of a subsequent actual reading, on customary terms.
(c) The intent of the foregoing is to credit such apportionment shall be readjusted and Seller or chargePurchaser, as the case may be, STIwill promptly deliver to the other the amount determined to be so due upon such readjustment. If Seller is unable to furnish such prior reading, any reading subsequent to the Additional Hotel SubsidiariesClosing will be apportioned on a per diem basis from the date of such reading immediately prior thereto and Seller shall pay the proportionate charges due up to the date of Closing.
6.1.4. Amounts paid or payable in respect of any Contracts assigned to Purchaser pursuant to the "▇▇▇▇ of Sale and Assignment" (as such term is defined in Section 8.1.2 hereof).
6.1.5. Purchaser shall receive a credit against the cash portion of the Purchase Price in an amount equal to all unapplied Tenant security deposits and accrued interest which Seller has received from Tenants.
6.1.6. Any leasing commissions with respect to the Leases shall be the sole responsibility of Seller, Southeast and shall be paid or discharged fully at or prior to Closing.
6.1.7. Seller shall make all units at the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets Apartments which are attributable vacant seven (7) days prior to operations before the Closing Date and ready for occupancy by incoming tenants, consistent with Seller’s past practices (the “Rent Ready Condition”). If any such vacant unit is not in Rent Ready Condition prior to the Closing Date, Purchaser shall receive a credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all at Closing in an amount equal to $750.00 per unit that is not in Rent Ready Condition. Purchaser is required to inspect any such revenues and expenses attributable vacant unit at least two (2) Business Days prior to operations on and after the Closing Date. At Except as set forth in this Agreement, the customs of the county in which the Property is located shall govern prorations. The provisions of this Section 6.1 shall survive the Closing.
6.2. If final prorations cannot be made at Closing for any item being prorated under Section 6.1, then Purchaser and Seller agree to allocate such items on a fair and equitable basis as soon as invoices or bills are available, with final adjustment to be made as soon as reasonably possible after the Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and but no later than 120 days after the Closing DateClosing, to the effect that income and expenses are received and paid by the parties on an accrual basis with respect to their period of ownership. Payments in connection with the final adjustment shall be due within 30 days of written notice. Upon request, Seller shall be provided reasonably satisfactory documentation (such as invoices or receipts) to confirm the final prorations.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Steadfast Apartment REIT III, Inc.)
Closing Adjustments. (a) The cash portion of the Purchase Price prorations and adjustments described in this Section 6.1(a9 (collectively the “Closing Adjustments”) and the Development Site Purchase Price, as applicable, shall be increased, by:made between Buyer and Seller at Closing or thereafter in accordance with Section 9(b) hereof.
(i) any cash on hand at All city, state and county ad valorem taxes and similar impositions levied or imposed upon or assessed against the Hotels when a Prime Subsidiary takes possession Property (any such cash the “Taxes”) for the year in which Closing occurs shall be counted by representatives prorated as of ShoLodge and Prime on midnight the day before the Closing Date. In the event the Taxes are not determinable at the time of Closing, the Taxes shall be prorated on the basis of the 2007 Tax ▇▇▇▇ (the “Estimated Taxes”);. In the event any of the Taxes are delinquent at the time of Closing, Seller shall pay same at Closing. If the Taxes are not paid at Closing, Seller shall deliver to Buyer the bills for the Taxes promptly upon receipt thereof and Buyer shall thereupon be responsible for the payment in full of the Taxes within the time fixed for payment thereof and before the same shall become delinquent. Notwithstanding the foregoing, in the event actual Taxes for 2008 exceed the Estimated Taxes for 2008 (the “Tax Excess”) or Estimated Taxes for 2008 exceed the actual Taxes for 2008 (the “Tax Refund”), Seller and Buyer shall prorate and pay such Tax Excess or such Tax Refund as follows:
(iiA) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would Seller shall be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing responsible for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and Tax Excess or shall receive credit for the Development Site Purchase PriceTax Refund prorated from January 1, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. 2008 through midnight of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period day prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared based upon a 365 day calendar year. Buyer shall notify Seller of any Tax Excess or Tax Refund. The notification shall include a calculation of the amount due to "Base Total Hotel Sales" (as defined Buyer from Seller in the HPT Leasecase of a Tax Excess or the amount due to Seller from Buyer in the case of a Tax Refund. Seller shall have thirty (30) for the similar period days from Seller’s receipt of such notification to pay its portion of the applicable "Base Year" Tax Excess to Buyer and Buyer shall have thirty (as defined in the HPT Lease)); and
(v30) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided days from Buyer’s delivery of such notification to the Hotels for any period prior Seller to 12:01 a.m. pay Seller its portion of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, on customary termsTax Refund.
(c) The intent of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Date.
Appears in 1 contract
Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, following adjustments shall be increased, bymade at the Closing:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives Taxes and assessments as set forth in Section 9 of ShoLodge and Prime on the Closing Date);this Contract.
(ii) any revenue generated by the operation A proration of the Hotels through collected rents (including, without limitation, payments or reimbursements for operating expenses, common area costs, insurance and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments personal property taxes), vending machine revenues (if any), utilities, and all other income and operating expenses relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes made between Seller and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read Buyer as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of , with Seller being responsible for the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge expenses and entitled to the seller in revenues accrued or applicable to the jurisdiction in which period before the Real Property is situatedClosing Date, and Buyer being responsible for the expenses and entitled to the revenues accrued or applicable to the period on customary termsor after the Closing Date.
(ciii) The intent If at any time any of the foregoing is amounts to credit be apportioned under this Section 10 C hereof cannot be calculated with complete precision because the amount or chargeamounts of one or more items included in such calculation are not then known, as such calculations shall be made on the case may bebasis of a reasonable estimate by Seller and Buyer of the amount or amounts of the item or items in question, STIbased upon the previous amounts paid therefore with respect to the Property, if any; provided, however, the Additional Hotel Subsidiariesreal estate tax proration shall not be adjusted after the Closing Date to account for any difference between the 2004 real estate taxes and the 2005 real estate taxes.
(iv) With respect to any rents (including without limitation reimbursement obligations for operating expenses, Southeast common area costs, insurance, or real estate and personal property taxes) for any given tenant, due but not paid as of the Development Subsidiaries, as applicable, with all revenues and expenses respecting Closing Date or becoming due after the Assets which are attributable Closing Date but pertaining to operations the period before the Closing Date and (collectively, Seller’s Tenant Reimbursements”), Buyer shall forward any such amounts received by Buyer directly to credit Seller, but all rent, including such reimbursement obligations, paid after the Closing Date, by or charge, as for any given tenant shall be credited first to amounts payable by said tenant with respect to the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations period on and after the Closing Date. At ClosingThe parties further agree with respect to Seller’s Tenant Reimbursements as follows:
(a) Schedule 10C attached hereto and incorporated herein contains a summary of Seller’s Tenant Reimbursements incurred during the 2004 calendar year and being billed to tenants during the 12-month period ending in February, STI2006. Notwithstanding anything seemingly to the contrary herein, Buyer shall pay at the Additional Hotel Subsidiaries and Southeast, Closing the full amount of its share (as applicable, shall provide tenant under the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments Lease) of Seller’s Tenant Reimbursement for the period from and after 2004 calendar year.
(b) Buyer shall use commercially reasonable efforts to collect Seller’s Tenant Reimbursements, which efforts shall not include any obligation of Buyer to file suit or engage third parties to collect such amounts. The Assignment of Leases delivered to Buyer at the Closing Dateshall reserve the right of Seller to collect Seller’s Tenant Reimbursements from tenants who fail to pay the same, but Seller shall not be permitted to terminate leases or evict tenants.
(c) The parties hereby agree to cooperate with each other and to exchange information necessary for Buyer to ▇▇▇▇ tenants for operating expense escalations for the 2005 calendar year and to prorate such amounts, if any, between Buyer and Seller. Once such proration is determined, Seller’s portion shall constitute Seller’s Tenant Reimbursements subject to the terms of this Section 10 C(iv).
(v) Seller shall pay to Buyer the amount of all damage, escrow or security deposits collected or received by Seller with respect to any tenants of the Property, which must be repaid to any such tenants pursuant to any leases or any applicable statute, without deduction or set off.
Appears in 1 contract
Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, Prorations shall be increased, by:
(i) any cash made between Seller and Purchaser on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read per diem basis as of the Closing Date);
(vi) accrued but unpaid benefits due to employees . The Closing Date shall be a day of income and expense for Purchaser. The following items shall be prorated and adjusted between Seller and Purchaser as of the Hotels who are hired Closing Date, except as otherwise specified:
9.1 Rents paid for the month of Closing by Prime the Tenant under the Lease, and any other prepaid rents (collectively, "Rent"), shall be prorated as of the Closing Date based on the respective number of days of ownership of Seller and Purchaser for such month. Any Rent due or a Prime Subsidiarypast due under the Lease as of Closing shall be paid to Seller on Closing, as and prorated if applicable, which are .
9.2 To the extent not paid by STIdirectly by Tenant, ShoLodge the parties will coordinate to transfer billing for water, electricity, sewer, gas, telephone and other utilities charges as of the Closing Date, and/or prorate such items if such billing transfers cannot be accomplished on Closing. Any security deposits or an Affiliate similar items paid to utility providers by Seller shall remain the property of ShoLodge directly to such employees upon termination of employment; andSeller.
(vii) any other charges or fees customarily prorated by a charge to 9.3 Real estate taxes paid during the seller in the jurisdiction year in which the Real Property is situated, on customary terms.
(c) The intent Closing occurs shall be prorated as of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date on a cash, rather than accrual basis, based on the last ascertainable tax ▇▇▇▇ and such proration shall be final.
9.4 All unapplied balances of security deposits under the Lease held by Seller shall be credited to credit or chargePurchaser on Closing.
9.5 Except as set forth above, as the case may be, Prime or a Prime Subsidiary, as applicable, with there shall be no prorations and all such revenues and expenses attributable to operations on and after the Closing Date. At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, prorations shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after the Closing Datebe final.
Appears in 1 contract
Sources: Industrial Building Lease Amendment
Closing Adjustments. (a) The cash portion of Adjustments to the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be increased, by:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash made between Seller and Purchaser and shall be counted by representatives of ShoLodge and Prime prorated on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(b) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read per diem basis as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(c) . The intent of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date shall be a day of income and to credit or charge, expense for Purchaser. The following items shall be prorated and adjusted between Seller and Purchaser as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after of the Closing Date, except as otherwise specified:
9.1 Prepaid rents and other prepaid charges collected by Seller from Tenant for the month of Closing shall be prorated by credit to Purchaser. At Rents and other charges which relate to periods prior to Closing which have not been collected as of Closing (collectively "Delinquent Rents") shall not be prorated. Seller shall have the right to collect Delinquent Rents from Tenant, which may include legal proceedings against Tenant as Seller deems appropriate, provided no such action shall demand possession or termination of the Lease. Any rents collected after closing shall be applied against the receivable as indicated by Tenant, provided if not specifically identifiable, rents collected after Closing from Tenant shall be applied: (i) first, rents due for the month in which such payment is received, (iii) second, to rents attributable to any period after Closing which are past due on the date of receipt, and (iv) third, to Delinquent Rents. After Closing, STISeller shall promptly remit to Purchaser any rents received relating to periods after Closing and Purchaser shall promptly remit to Seller any Delinquent Rents received. The provision of this Section 9.1 shall survive Closing.
9.2 Real estate taxes, water, electricity, sewer, gas, telephone and other utilities and charges which are paid directly by Tenant under the Lease shall not be prorated.
9.3 To the extent that errors are discovered in, or additional information becomes available with respect to, the Additional Hotel Subsidiaries prorations and Southeastallocations made at Closing, Seller and Purchaser agree to make such post-Closing adjustments as may be necessary to correct any inaccuracy; however, all prorations (except for prorations and allocations of (i) ad valorem taxes, (ii) tenant reimbursables of taxes and operating expenses, as applicable, applicable and (iii) prorations or allocations that are then currently in dispute) shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and be final no later than six (6) months after the Closing DateClosing.
Appears in 1 contract
Sources: Contract for Purchase of Real Estate (Corporate Office Properties Trust)
Closing Adjustments. (a) The cash portion of following will be apportioned on the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be increased, byclosing statement against amounts due Seller at Closing:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash shall be counted by representatives a. All taxes and special assessments of ShoLodge whatever nature and Prime on the Closing Date);
(ii) any revenue generated by the operation kind that have become due and payable or are delinquent as of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests will be paid and discharged by Seller. Current real and personal property taxes (regardless of the Hotels then in occupancy which in lien date) will be prorated on the normal course due date basis of business would the taxing authority on the basis of a 365-day year. Seller will be received after responsible for taxes up to but not including the day of Closing. In addition, Seller will pay all state and county transfer taxes and revenue stamps due on Closing (the amount of such revenue or required to be determined by representatives of ShoLodge and Prime paid on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. recording of the Closing Date;warranty deed.
(iv) personal property taxesb. All tenant security deposits, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes)cleaning deposits, if any, relating to the Assets paid prior to Closing on account and other deposits of any period from whatever nature and after 12:01 a.m. of the Closing Date;
(v) kind whatsoever, and whether or not refundable, will be assumed by Purchaser with credit against amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating to the Assets which are transferred and remain on deposit after Closing for the benefit of a Prime Subsidiary or Prime, as applicable; and
(viii) any other charges or fees customarily prorated by a credit to the seller in the jurisdiction in which the Real Property is situated, on customary termsdue at Closing.
(b) The cash portion of the Purchase Price described in Section 6.1(a) c. All rents and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained other income collected by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating to the Real Property on account of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" (as defined in the HPT Lease) shall be calculated based on the "Total Hotel Sales" (as defined in the HPT Lease) for the current year Seller up to the Closing Date compared to "Base Total Hotel Sales" (as defined in the HPT Lease) for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided that are allocable to the Hotels for any period prior to 12:01 a.m. of commencing with and after the Closing Date (ShoLodge shall use commercially reasonable efforts and the full amount of all security deposits, pet deposits, and other deposits held by Seller will be paid by Seller to cause meters Purchaser. Seller will have no surviving rights after Closing to collect past due rentals from tenants. If any tenant lease provides for the rent payable by a tenant after the Closing Date to be read less than the pro forma or budgeted rent for such apartment unit as set forth on the rent roll for the Subject Premises as of the Closing Date);
(vi) accrued but unpaid benefits due to employees , whether as a result of the Hotels who are hired by Prime free rent, reduced rent, or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by form of rent concession (in each case a charge Rent Concession), at Closing Purchaser will be entitled to a credit from Seller in an amount equal to the seller in the jurisdiction in which the Real Property is situated, on customary terms.
(c) The intent sum of the foregoing is all such Rent Concessions made to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are tenants attributable to operations before the Closing Date and to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and period after the Closing Date. In connection with the proration set forth above At Closing, STI, the Additional Hotel Subsidiaries and Southeast, as applicable, shall provide the Prime HPT Subsidiary and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings and any other booking commitments for the period from and after least 7 days before the Closing Date, Seller will furnish to Purchaser a schedule setting forth all of the the information as may be needed to complete the above-referenced prorations not later than 14 days before Closing and that information will be updated before Closing. For the purpose of setting up Purchaser’s to set up Purchaser’s books and records for the Subject Premises, to commence preparation of the closing statements, and to prepare estimates of proposed closing prorations. Seller will allow Purchaser and Purchaser will have the right to have access to Seller’s books and records relating to the tenant leases during verify that period information, and, at or before Closing, Seller will electronically download all this information to Purchaser in a comma delimited format so Purchaser may receive all data at or before the Closing. Date.
d. Seller will pay in full, not later than at (or before) Closing, all outstanding bills of utility companies and service providers through the Closing Date. If there are outstanding water or sewer bills that have not been paid by Seller and relate to periods on or before the Closing Date, a utility water or sewer escrow will be established with the Title Company to ensure that there are funds available to pay these water or sewer bills following the Closing Date and following Closing. At the time as the water or sewer bills have been issued, the parties will prorate the bills and any funds escrowed will be used to pay Seller’s share of the bills with the remaining escrowed amounts payable to Seller.
e. Seller will pay all the brokerage commissions due in connection with this transaction to [name] pursuant to section 15 of this Agreement.
Appears in 1 contract
Sources: Purchase Agreement
Closing Adjustments. (a) The cash portion of the Purchase Price described in Section 6.1(a) and the Development Site Purchase Price, as applicable, following shall be increased, byapportioned against sums due Seller at Closing:
(i) any cash on hand at the Hotels when a Prime Subsidiary takes possession (any such cash A. All payments received by Seller from each Tenant for fixed rent shall be counted by representatives of ShoLodge and Prime on the Closing Date);
(ii) any revenue generated by the operation of the Hotels through and including the night before the Closing Date arising from accounts receivable with respect to guests of the Hotels then in occupancy which in the normal course of business would be received after the Closing (the amount of such revenue to be determined by representatives of ShoLodge and Prime on the Closing Date);
(iii) amounts paid prior to Closing for any ad valorem real estate taxes and assessments relating to the Real Property on account of any period from and after 12:01 a.m. of the Closing Date;
(iv) personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets paid prior to Closing on account of any period from and after 12:01 a.m. of the Closing Date;
(v) amounts paid prior to Closing under any Operating Agreement, the HPT Lease (including, if applicable, prorated as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period from and after 12:01 a.m. of the Closing Date;
(vi) accrued but unpaid interest earnings on the HPT Lease Guaranty Deposit for any period prior to 12:01 a.m. of the Closing Date (if such HPT Lease Guaranty Deposit is not returned from HPT and/or Landlord to ShoLodge or STI);
(vii) any utility deposits relating with Purchaser receiving the fixed rent payable with respect to the Assets day of Closing and for all periods thereafter and all payments received by Seller from each Tenant, for additional rental items such as real estate taxes, utilities, maintenance and operating expenses, insurance and similar reimbursements, expenses, escalation payments and prepaid expense items allocable lo lease periods (under the Leases) extending to periods after the Closing, shall be prorated as of the Closing with Purchaser receiving a credit for the amount payable for the day of Closing and thereafter, shall be allocated and distributed to Purchaser together with an accounting therefor or at Purchaser's option credited to Purchaser at the Closing. In the event that a Tenant pays additional rental items such as real estate taxes, maintenance and operating expenses and insurance on an estimated basis, then, prior to Closing, Seller shall complete a reconciliation of all such expenses and shall provide Purchaser with a credit at Closing for any amounts which Purchaser may be obligated to refund to such Tenant. In no event shall Purchaser be charged with any past due rentals, which, if collected by Purchaser, shall be remitted to Seller only after all current rents and other charges have been satisfied, and less Purchaser's reasonable costs of collection, including attorney's fees. Seller shall have no surviving rights after Closing to collect from a Tenant any past due amounts. Should any current charges or b▇▇▇▇▇▇▇ to or for utilities, including electricity, sewer and water charges that are payable in arrears, be unknown at the Closing, such charges shall be estimated and prorated as of the Closing, with Purchaser receiving a credit from Seller, based upon the last available invoices or billing therefor.
B. All real and personal property taxes and special assessments of whatever nature and kind which have become due and payable or are delinquent as of the date of Closing shall be paid and discharged by Seller. To the extent not paid directly by the Tenants, each of(i) the pro rata share of taxes assessed against the Real Estate which are transferred applicable to the Burlington Premises for periods prior to the date on which Burlington becomes liable for such taxes under the Burlington Lease, and remain (ii) the pro rata share of taxes assessed against the Real Estate which are applicable to the Five Below Premises for periods prior to the date on deposit after which Five Below becomes liable for such taxes under the Five Below Lease shall be the responsibility of Seller and shall be credited to Purchaser at Closing, and if Closing occurs prior to the receipt by Seller of the tax b▇▇▇ for the benefit Subject Premises for the applicable tax period, credit for taxes shall be based upon the estimated taxes and installments of a Prime Subsidiary or Primeassessments calculated based on Seller's and Purchaser's joint consultation with the Office of the Supervisor of Assessments for Champaign County, as applicable; and
(viii) any other charges or fees customarily prorated by Illinois, but not less than the taxes and installments of assessments for the previous period. Purchaser shall also receive a credit for any installment payments made prior to the seller Closing Date by Five Below to Seller for its pro rata share of taxes. In the event based upon the applicable proration method, Seller is owed any taxes for periods prior to Closing and which are to be paid for by Tenants pursuant to the Leases, then, Purchaser shall not be required to provide Seller with a credit at Closing; provided, however, at such time as Purchaser has received such amounts from a Tenant under its Lease, it shall remit such amounts to Seller and in the jurisdiction in which the Real Property is situated, on customary terms.no event shall Purchaser be responsible for payment to Seller of any amount of real estate taxes as part of such tax proration under this Section 9.B.
(b) The cash portion of C. Seller shall provide Purchaser with a credit against the Purchase Price described at Closing in Section 6.1(a) and the Development Site Purchase Price, as applicable, shall be decreased, by:
(i) any Advance Payments retained by STI, an Additional Hotel Subsidiary, or Southeast, as applicable;
(ii) unpaid ad valorem real estate taxes and assessments relating amount equal to the Real Property on account total amount of any period prior to 12:01 a.m. of the Closing Date;
(iii) unpaid personal property taxes, gross receipts taxes, sales taxes, excise taxes, hotel occupancy taxes or other similar taxes (but excluding income and franchise taxes), if any, relating to the Assets payable on account of any period prior to 12:01 a.m. of the Closing Date;
(iv) unpaid amounts payable under any Operating Agreement (ShoLodge shall use its best efforts to cause all amounts due under the Operating Agreements to be paid to the Closing Date), the HPT Lease (including, if applicable, as amended, or pursuant to the separate lease contemplated in Section 3.8) or any instrument creating a Permitted Exception on account of any period prior to 12:01 a.m. of the Closing Date (for this purpose "Additional Rent" Fixed Rent (as defined in the HPT Five Below Lease) shall be calculated based on that the "Total Hotel Sales" Five Below Tenant would have been required to pay for the remainder of the Abatement Period (as defined in the HPT Five Below Lease) were it not for the current year abatement of such Fixed Rent pursuant to the last paragraph of Section 4 of the Five Below Lease.
D. Seller shall be responsible for payment of all operating expenses related to the Subject Premises prior to the Closing Date compared Date, which shall be paid in full prior to "Base Total Hotel Sales" (as defined Closing and Seller shall provide Purchaser with reasonable evidence that all such operating expenses including all outstanding bills of utility companies and service providers have been paid in the HPT Lease) full for the similar period of the applicable "Base Year" (as defined in the HPT Lease)); and
(v) unpaid rates, rents and charges for sewer, water, gas, electricity, telephone and other utility services provided to the Hotels for any time period prior to 12:01 a.m. of the Closing Date (ShoLodge shall use commercially reasonable efforts to cause meters to be read as of the Closing Date);
(vi) accrued but unpaid benefits due to employees of the Hotels who are hired by Prime or a Prime Subsidiary, as applicable, which are not paid by STI, ShoLodge or an Affiliate of ShoLodge directly to . Purchaser shall be responsible for all such employees upon termination of employment; and
(vii) any other charges or fees customarily prorated by a charge to the seller in the jurisdiction in which the Real Property is situated, expenses on customary terms.
(c) The intent of the foregoing is to credit or charge, as the case may be, STI, the Additional Hotel Subsidiaries, Southeast or the Development Subsidiaries, as applicable, with all revenues and expenses respecting the Assets which are attributable to operations before the Closing Date and thereafter.
E. Seller shall be responsible for payment of all amounts due under all reciprocal easement agreements for the time period prior to credit or charge, as the case may be, Prime or a Prime Subsidiary, as applicable, with all such revenues and expenses attributable to operations on and after the Closing Date. At ClosingPurchaser shall be responsible for all such amounts on the Closing Date and thereafter.
F. Seller shall pay all state, STIcounty, the Additional Hotel Subsidiaries city and Southeastother real estate conveyance, as applicabletangible, shall provide the Prime HPT Subsidiary intangible, stamp and the Prime Texas Subsidiary, as applicable, with a list setting forth advance guest bookings, conventions, meetings similar taxes and any other booking commitments for transfer taxes due upon Closing or required to be paid upon recording of the period from Special Warranty Deed.
G. Purchaser and after Seller shall split, on a fifty/fifty (50/50) basis, any escrow fees/closing fees charged by the Closing DateEscrow Agent.
Appears in 1 contract
Sources: Purchase Agreement (Aei Income & Growth Fund Xxi LTD Partnership)