Common use of Overage Rents Clause in Contracts

Overage Rents. Overage Rents shall be separately prorated as of the Adjustment Time in the manner provided in this Section 6.4.3. Such proration shall be made on a Tenant Lease-by-Tenant Lease basis and shall be based upon the total annual Overage Rents due under each Tenant Lease for the calendar year or the appropriate fiscal year as applicable under such Tenant Lease. The actual fiscal year for Overage Rents under each Tenant Lease during which the Closing occurs is hereinafter referred to as the "Applicable Overage Rent Year." Non-delinquent Overage Rent collections for the month in which Closing occurs shall be prorated in the same manner as other Rents. Subject to the preceding sentence, to the extent a Tenant makes advance monthly installments or other interim payments on account of projected Overage Rents, Contributors shall initially retain all such advance monthly installments or other interim payments of projected Overage Rents received by Property Owner or Property Owner's Property Manager on or prior to the Closing Date and CBL/OP shall initially retain all such advance monthly installments or other interim payments of projected Overage Rents received by CBL/OP following Closing. Upon the expiration of the Applicable Overage Rent Year and the determination of the actual Overage Rents due for the Applicable Overage Rent Year, CBL/OP and Contributors shall prorate the Overage Rents for the Applicable Overage Rents Year as follows: (a) Contributors shall be entitled to the portion of the total annual Overage Rents due from each Tenant for the Applicable Overage Rent Year equal to the product obtained by multiplying such total annual Overage Rents by a fraction, the numerator of which fraction is the total amount of Operating Expenses incurred by Property Owner and the Company which are to be reimbursed by Tenants through Overage Rent for the portion of the Applicable Overage Rent Year preceding the Adjustment Time and the denominator of which fraction is the total amount of Operating Expenses incurred by Property Owner and the Company which are to be reimbursed by Tenants through Overage Rent for the Applicable Overage Rent Year; and (b) CBL/OP shall be entitled to the portion of the total annual Overage Rents due from each Tenant for the Applicable Overage Rent Year equal to the product obtained by multiplying such total annual Overage Rents by a fraction, the numerator of which fraction is the total amount of Operating Expenses incurred by the Company which are to be reimbursed by Tenants through Overage Rent for the portion of the Applicable Overage Rent Year after the Adjustment Time and the denominator of which fraction is the total amount of Operating Expenses incurred by Property Owner and the Company which are to be reimbursed by Tenants through Overage Rent for the Applicable Overage Rent Year. To the extent Property Owner has collected in advance monthly installments or other interim payments of projected Overage Rents from a Tenant for the Applicable Overage Rent Year which are in excess of the amount of Overage Rents for such Tenant to which Contributors is/are entitled hereunder, Contributors shall, within 10 Business Days after the year-end adjustment of Overage Rents, reimburse CBL/OP for any part of such excess and upon such reimbursement CBL/OP shall be responsible for any refunds and reimbursements due to the Tenant. To the extent Property Owner has collected in advance monthly installments or other interim payments of projected Overage Rents from a Tenant for the Applicable Overage Rent Year which are less than the amount of Overage Rents for such Tenant to which Contributors are entitled hereunder, CBL/OP shall, to the extent collected by CBL/OP, within 10 Business Days after the year-end adjustment of Overage Rents, reimburse Contributors the amount of any such shortfall. Any Overage Rent dispute involving (A) a claim by a Tenant for reimbursement or (B) disputing the amount of the expenses, and in the case of either (A) or (B), relating to any period prior to Closing, shall be the Contributors' responsibility as to any sums owed to such Tenant, and any sums deemed due from such Tenant for such periods shall likewise be the Contributors'. CBL/OP shall be responsible for such matters for periods from the date of Closing and thereafter. CBL/OP shall be in control of all Overage Rent disputes following the Closing but the parties agree to cooperate in any Overage Rent dispute involving periods prior to the Closing and to provide information and to assist each other in any litigation or other procedures that may ensue with respect to such Overage Rent disputes. Any settlement of a CAM dispute for periods prior to Closing shall require Contributors' prior approval. Contributors shall be responsible for all court costs, legal fees (including CBL/OP's attorney's fees and costs) and other costs in any such Overage Rent dispute relating to periods prior to Closing, and CBL/OP shall be responsible for all court costs, legal fees (including Contributors' attorney's fees and costs) and other costs in any such Overage Rent dispute relating to periods from the date of Closing and thereafter. In the case of a multi-year Overage Rent dispute in which a portion of the period at issue relates to periods prior to the Closing and a portion relates to periods following the Closing, Contributors and CBL/OP shall each bear a pro rata share of the court costs, legal fees (including CBL/OP's and Contributors' attorney's fees) and other costs based on the period involved (i.e., in the case of a CAM dispute involving 3 years, 2 prior to Closing and 1 following Closing, Contributors shall be responsible for 2/3 of the referenced costs and CBL/OP shall be responsible for 1/3). Notwithstanding the foregoing, with respect to any multi-year Overage Rent dispute relating to both periods prior to the Closing and periods after the Closing, Contributors shall have the right to settle such dispute with respect to periods prior to the Closing, and upon consummation of such settlement, if CBL/OP does not settle such dispute with respect to periods after the Closing simultaneously, Contributors shall have no obligation to bear any share of court costs, legal fees or other costs pertaining to such dispute incurred after consummation of such settlement.

Overage Rents. Overage Rents rents to be prorated under this Subparagraph 6.C. shall include, but not be limited to, operating expenses and other similar rental payments in excess of fixed, minimum and base rents under the Tenant Leases, whether finally determined before or after the expiration of the fiscal years under various Tenant Leases. Overage rents shall be separately prorated as under each Tenant Lease on the basis of the Adjustment Time fiscal year set forth in the manner provided in this Section 6.4.3. Such proration shall be made on a Tenant Lease-by-Tenant Lease basis and shall be based upon the total annual Overage Rents due under each Tenant Lease for the calendar year or the appropriate fiscal year as applicable under such Tenant Leasepayment of overage rents. The actual fiscal year for Overage Rents under each Tenant Lease during which the Closing occurs is hereinafter referred to as the "Applicable Overage Rent Year." Non-delinquent Overage Rent collections Any interim payments received by either party for the month in which the Closing Date occurs shall be prorated as between Seller and Purchaser based upon the number of days in that month occurring before the same manner as Closing Date, and the party receiving the interim payment shall remit to (if received on or after the Closing Date) or credit (if received before the Closing Date) the other Rentsparty its proportionate share. Subject Upon final determination of overage rents owed by a tenant under its Tenant Lease relating to any fiscal year in which Seller owned the preceding sentenceProperty for all or a portion of such fiscal year, to the extent a Tenant makes advance monthly installments or other interim payments Seller and Purchaser shall adjust between themselves amounts owed for such fiscal year on account of projected Overage Rentsoverage rents, Contributors shall initially retain all and Seller's allocable share of such advance monthly installments or other interim payments of projected Overage Rents received by Property Owner or Property Owner's Property Manager on or prior to the Closing Date and CBL/OP shall initially retain all such advance monthly installments or other interim payments of projected Overage Rents received by CBL/OP following Closing. Upon the expiration of the Applicable Overage Rent Year and the determination of the actual Overage Rents due for the Applicable Overage Rent Year, CBL/OP and Contributors shall prorate the Overage Rents for the Applicable Overage Rents Year as follows: (a) Contributors overage rents shall be entitled equal to the portion of an amount determined by multiplying the total annual Overage Rents due from each Tenant for the Applicable Overage Rent Year equal to the product obtained amount of overage rents owed by multiplying such total annual Overage Rents tenants by a fraction, fraction the numerator of which fraction is the total amount number of Operating Expenses incurred by Property Owner and calendar days in such fiscal year in which Seller owned the Company which are to be reimbursed by Tenants through Overage Rent for the portion of the Applicable Overage Rent Year preceding the Adjustment Time Property, and the denominator of which fraction is the total amount number of Operating Expenses incurred by Property Owner calendar days in such fiscal year. Purchaser shall furnish Seller with financial statements indicating the sales and the Company which are overage (percentage) rent figures for each tenant for all relevant periods. Within five (5) days after collection thereof, Purchaser shall remit to be reimbursed by Tenants through Overage Rent for the Applicable Overage Rent Year; and (b) CBL/OP shall be entitled to the portion of the total annual Overage Rents due from each Tenant for the Applicable Overage Rent Year equal to the product obtained by multiplying such total annual Overage Rents by a fraction, the numerator of which fraction is the total amount of Operating Expenses incurred by the Company which are to be reimbursed by Tenants through Overage Rent for the portion of the Applicable Overage Rent Year after the Adjustment Time and the denominator of which fraction is the total amount of Operating Expenses incurred by Property Owner and the Company which are to be reimbursed by Tenants through Overage Rent for the Applicable Overage Rent Year. To the extent Property Owner has collected in advance monthly installments or other interim payments of projected Overage Rents from a Tenant for the Applicable Overage Rent Year which are in excess of the amount of Overage Rents for such Tenant to which Contributors is/are entitled hereunder, Contributors shall, within 10 Business Days after the year-end adjustment of Overage Rents, reimburse CBL/OP for any part of such excess and upon such reimbursement CBL/OP shall be responsible for any refunds and reimbursements due to the Tenant. To the extent Property Owner has collected in advance monthly installments or other interim payments of projected Overage Rents from a Tenant for the Applicable Overage Rent Year which are less than the amount of Overage Rents for such Tenant to which Contributors are entitled hereunder, CBL/OP shall, to the extent collected by CBL/OP, within 10 Business Days after the year-end adjustment of Overage Rents, reimburse Contributors the amount of any such shortfallSeller its allocable share. Any Overage Rent dispute involving (A) a claim by a Tenant for reimbursement or (B) disputing the amount of the expenses, and in the case of either (A) or (B), relating to any period prior to Closing, shall be the Contributors' responsibility as to any sums owed to such Tenant, and any sums deemed due from such Tenant for such periods shall likewise be the Contributors'. CBL/OP shall be responsible for such matters for periods from the date of Closing and thereafter. CBL/OP shall be in control of all Overage Rent disputes following the Closing but the parties agree to cooperate in any Overage Rent dispute involving periods prior to the Closing and to provide information and to assist each other in any litigation or other procedures that may ensue overage rents with respect to Tenant Leases terminated before the Closing Date shall belong entirely to Seller, and Purchaser shall remit to Seller all payments made to Purchaser after the Closing Date on account of such Overage Rent disputesoverage rents. Any settlement of a CAM dispute for periods prior to Closing shall require Contributors' prior approval. Contributors shall be responsible for all court costs, legal fees (including CBL/OP's attorney's fees and costs) and other costs in any such Overage Rent dispute relating to periods prior to Closing, and CBL/OP shall be responsible for all court costs, legal fees (including Contributors' attorney's fees and costs) and other costs in any such Overage Rent dispute relating to periods from the date of Closing and thereafter. In the case of a multi-year Overage Rent dispute in which a portion of the period at issue relates to periods prior to the Closing and a portion relates to periods following the Closing, Contributors and CBL/OP shall each bear a pro rata share of the court costs, legal fees (including CBL/OP's and Contributors' attorney's fees) and other costs based on the period involved (i.e., in the case of a CAM dispute involving 3 years, 2 prior to Closing and 1 following Closing, Contributors shall be responsible for 2/3 of the referenced costs and CBL/OP shall be responsible for 1/3). Notwithstanding the foregoing, overage rents with respect to any multi-year Overage Rent dispute relating to both periods prior to the Closing and periods after the Closing, Contributors shall have the right to settle such dispute with respect to periods prior to the Closing, and upon consummation of such settlement, if CBL/OP does not settle such dispute with respect to periods Tenant Leases commencing on or after the Closing simultaneously, Contributors Date shall have no obligation belong entirely to bear any share of court costs, legal fees or other costs pertaining to such dispute incurred after consummation of such settlementPurchaser.

Overage Rents. Subject to Section 6.2(j) of this Agreement, Seller shall be entitled to all Overage Rents which are due or past due or not yet due but accrued under the terms of the Leases, prorated to the Closing Date, regardless of when such payments are actually made. “Overage Rents” to be prorated hereunder shall include, but not be limited to, percentage rents, consumer price index escalation payments and other similar rental payments in excess of fixed, minimum and base rents under the Leases, whether finally determined before or after the expiration of the fiscal years under various Leases. Overage Rents shall be separately prorated as under each Lease on the basis of the Adjustment Time fiscal year set forth in the manner provided in this Section 6.4.3. Such proration shall be made on a Tenant Lease-by-Tenant Lease basis and shall be based upon the total annual Overage Rents due under each Tenant Lease for the calendar year payment of Overage Rents. The foregoing notwithstanding, Overage Rents shall not be credited at Closing, but shall instead be adjusted and paid, subject to collection from tenants, at the year-end adjustment. Any interim Overage Rent payments made before the Closing Date shall be retained by Seller until year-end adjustment and determination of each party’s allocable share thereof. Any amounts received by Purchaser on or after the appropriate Closing Date as interim payments of overage rents shall be retained by Purchaser until year-end adjustment and determination of Seller’s allocable share thereof. Upon final determination of Overage Rents owed by a tenant under its Lease for the fiscal year as applicable under that Lease in which the Closing Date occurs, Seller and Purchaser shall adjust between themselves amounts owed for such Tenant Leasefiscal year on account of Overage Rents, and Seller’s allocable share of such Overage Rents shall be equal to an amount determined by multiplying total Overage Rents owed by the fraction whose numerator is the number of days in such fiscal year until the Closing Date, and whose denominator is the total number of days in such fiscal year. The actual At the end of the fiscal year for each Lease for which Overage Rents under each Tenant Lease during which the Closing occurs is hereinafter referred to as the "Applicable Overage Rent Year." Non-delinquent Overage Rent collections for the month in which Closing occurs shall be prorated in the same manner as other Rents. Subject to the preceding sentence, to the extent a Tenant makes advance monthly installments or other interim payments on account of projected Overage Rents, Contributors shall initially retain all such advance monthly installments or other interim payments of projected Overage Rents received by Property Owner or Property Owner's Property Manager on or prior to the Closing Date and CBL/OP shall initially retain all such advance monthly installments or other interim payments of projected Overage Rents received by CBL/OP following Closing. Upon the expiration of the Applicable Overage Rent Year and the determination of the actual Overage Rents due for the Applicable Overage Rent Year, CBL/OP and Contributors shall prorate the Overage Rents for the Applicable Overage Rents Year as follows: (a) Contributors shall be entitled to the portion of the total annual Overage Rents are due from each Tenant for a tenant, Purchaser shall promptly ▇▇▇▇ the Applicable Overage Rent Year equal to the product obtained by multiplying such total annual Overage Rents by a fractionamounts due, the numerator of which fraction is the total amount of Operating Expenses incurred by Property Owner and the Company which are to be reimbursed by Tenants through Overage Rent for the portion of the Applicable Overage Rent Year preceding the Adjustment Time and the denominator of which fraction is the total amount of Operating Expenses incurred by Property Owner and the Company which are to be reimbursed by Tenants through Overage Rent for the Applicable Overage Rent Year; and (b) CBL/OP shall be entitled to the portion of the total annual Overage Rents due from each Tenant for the Applicable Overage Rent Year equal to the product obtained by multiplying such total annual Overage Rents by a fraction, the numerator of which fraction is the total amount of Operating Expenses incurred by the Company which are to be reimbursed by Tenants through Overage Rent for the portion of the Applicable Overage Rent Year after the Adjustment Time and the denominator of which fraction is the total amount of Operating Expenses incurred by Property Owner and the Company which are to be reimbursed by Tenants through Overage Rent for the Applicable Overage Rent Yearif necessary. To the extent Property Owner has collected in advance monthly installments or other received by Purchaser under the applicable Lease, Purchaser shall furnish Seller with financial statements indicating the sales and Overage Rent figures for each tenant for all relevant periods. Within fifteen (15) days after collection, Purchaser shall remit to Seller its allocable share, less interim payments of projected Overage Rents previously retained by Seller, if any; provided, however, in no event shall Purchaser be obligated to remit any amounts payable to Seller as provided in this sentence unless actually collected from a Tenant for the Applicable Overage Rent Year which are applicable tenants. If Seller has retained amounts in excess of the amount of Overage Rents for such Tenant to which Contributors is/are entitled hereunderits allocable share, Contributors Seller shall, within 10 Business Days fifteen (15) days after notice from Purchaser of the year-end adjustment of Overage Rentsexcess owed Purchaser, reimburse CBL/OP for any part of remit such excess and upon such reimbursement CBL/OP shall be responsible for any refunds and reimbursements due to the Tenant. To the extent Property Owner has collected in advance monthly installments or other interim payments of projected Overage Rents from a Tenant for the Applicable Overage Rent Year which are less than the amount of Overage Rents for such Tenant to which Contributors are entitled hereunder, CBL/OP shall, to the extent collected by CBL/OP, within 10 Business Days after the year-end adjustment of Overage Rents, reimburse Contributors the amount of any such shortfallPurchaser. Any Overage Rent dispute involving (A) a claim by a Tenant for reimbursement or (B) disputing the amount of the expenses, and in the case of either (A) or (B), relating to any period prior to Closing, shall be the Contributors' responsibility as to any sums owed to such Tenant, and any sums deemed due from such Tenant for such periods shall likewise be the Contributors'. CBL/OP shall be responsible for such matters for periods from the date of Closing and thereafter. CBL/OP shall be in control of all Overage Rent disputes following the Closing but the parties agree to cooperate in any Overage Rent dispute involving periods prior to the Closing and to provide information and to assist each other in any litigation or other procedures that may ensue Rents with respect to Leases terminated before the Closing Date shall belong entirely to Seller, and Purchaser shall remit to Seller all payments made to Purchaser on or after the Closing Date on account of such Overage Rent disputesRents. Any settlement of a CAM dispute for periods prior to Closing shall require Contributors' prior approval. Contributors shall be responsible for all court costs, legal fees (including CBL/OP's attorney's fees and costs) and other costs in any such Overage Rent dispute relating to periods prior to Closing, and CBL/OP shall be responsible for all court costs, legal fees (including Contributors' attorney's fees and costs) and other costs in any such Overage Rent dispute relating to periods from the date of Closing and thereafter. In the case of a multi-year Overage Rent dispute in which a portion of the period at issue relates to periods prior to the Closing and a portion relates to periods following the Closing, Contributors and CBL/OP shall each bear a pro rata share of the court costs, legal fees (including CBL/OP's and Contributors' attorney's fees) and other costs based on the period involved (i.e., in the case of a CAM dispute involving 3 years, 2 prior to Closing and 1 following Closing, Contributors shall be responsible for 2/3 of the referenced costs and CBL/OP shall be responsible for 1/3). Notwithstanding the foregoing, Rents with respect to any multi-year Overage Rent dispute relating to both periods prior to the Closing and periods after the Closing, Contributors shall have the right to settle such dispute with respect to periods prior to the Closing, and upon consummation of such settlement, if CBL/OP does not settle such dispute with respect to periods Leases commencing on or after the Closing simultaneously, Contributors Date shall have no obligation belong entirely to bear any share of court costs, legal fees or other costs pertaining to such dispute incurred after consummation of such settlementPurchaser.

Overage Rents. Overage Rents shall be separately prorated as of the Adjustment Time in the manner provided in this Section 6.4.3. Such proration shall be made on a Tenant Lease-by-Tenant Lease basis and shall be based upon the total annual Overage Rents due under each Tenant Lease for the calendar year or the appropriate fiscal year as applicable under such Tenant Lease. The actual fiscal year for Overage Rents under each Tenant Lease during which the Closing occurs is hereinafter referred to as the "Applicable Overage Rent Year." Non-delinquent Overage Rent collections for the month in which Closing occurs shall be prorated in the same manner as other Rents. Subject to the preceding sentence, to the extent a Tenant makes advance monthly installments or other interim payments on account of projected Overage Rents, Contributors shall initially retain all such advance monthly installments or other interim payments of projected Overage Rents received by Property Owner or Property Owner's Property Manager on or prior to the Closing Date and CBL/OP shall initially retain all such advance monthly installments or other interim payments of projected Overage Rents received by CBL/OP following Closing. Upon the expiration of the Applicable Overage Rent Year and the determination of the actual Overage Rents due for the Applicable Overage Rent Year, CBL/OP and Contributors shall prorate the Overage Rents for the Applicable Overage Rents Year as follows:projected (a) Contributors shall be entitled to the portion of the total annual Overage Rents due from each Tenant for the Applicable Overage Rent Year equal to the product obtained by multiplying such total annual Overage Rents by a fraction, the numerator of which fraction is the total amount of Operating Expenses incurred by Property Owner and the Company which are to be reimbursed by Tenants through Overage Rent for the portion of the Applicable Overage Rent Year preceding the Adjustment Time and the denominator of which fraction is the total amount of Operating Expenses incurred by Property Owner and the Company which are to be reimbursed by Tenants through Overage Rent for the Applicable Overage Rent Year; and and (b) CBL/OP shall be entitled to the portion of the total annual Overage Rents due from each Tenant for the Applicable Overage Rent Year equal to the product obtained by multiplying such total annual Overage Rents by a fraction, the numerator of which fraction is the total amount of Operating Expenses incurred by the Company which are to be reimbursed by Tenants through Overage Rent for the portion of the Applicable Overage Rent Year after the Adjustment Time and the denominator of which fraction is the total amount of Operating Expenses incurred by Property Owner and the Company which are to be reimbursed by Tenants through Overage Rent for the Applicable Overage Rent Year. To the extent Property Owner has collected in advance monthly installments or other interim payments of projected Overage Rents from a Tenant for the Applicable Overage Rent Year which are in excess of the amount of Overage Rents for such Tenant to which Contributors is/are entitled hereunder, Contributors shall, within 10 Business Days after the year-end adjustment of Overage Rents, reimburse CBL/OP for any part of such excess and upon such reimbursement CBL/OP shall be responsible for any refunds and reimbursements due to the Tenant. To the extent Property Owner has collected in advance monthly installments or other interim payments of projected Overage Rents from a Tenant for the Applicable Overage Rent Year which are less than the amount of Overage Rents for such Tenant to which Contributors are entitled hereunder, CBL/OP shall, to the extent collected by CBL/OP, within 10 Business Days after the year-end adjustment of Overage Rents, reimburse Contributors the amount of any such shortfall. Any Overage Rent dispute involving (A) a claim by a Tenant for reimbursement or (B) disputing the amount of the expenses, and in the case of either (A) or (B), relating to any period prior to Closing, shall be the Contributors' responsibility as to any sums owed to such Tenant, and any sums deemed due from such Tenant for such periods shall likewise be the Contributors'. CBL/OP shall be responsible for such matters for periods from the date of Closing and thereafter. CBL/OP shall be in control of all Overage Rent disputes following the Closing but the parties agree to cooperate in any Overage Rent dispute involving periods prior to the Closing and to provide information and to assist each other in any litigation or other procedures that may ensue with respect to such Overage Rent disputes. Any settlement of a CAM dispute for periods prior to Closing shall require Contributors' prior approval. Contributors shall be responsible for all court costs, legal fees (including CBL/OP's attorney's fees and costs) and other costs in any such Overage Rent dispute relating to periods prior to Closing, and CBL/OP shall be responsible for all court costs, legal fees (including Contributors' attorney's fees and costs) and other costs in any such Overage Rent dispute relating to periods from the date of Closing and thereafter. In the case of a multi-year Overage Rent dispute in which a portion of the period at issue relates to periods prior to the Closing and a portion relates to periods following the Closing, Contributors and CBL/OP shall each bear a pro rata share of the court costs, legal fees (including CBL/OP's and Contributors' attorney's fees) and other costs based on the period involved (i.e., in the case of a CAM dispute involving 3 years, 2 prior to Closing and 1 following Closing, Contributors shall be responsible for 2/3 of the referenced costs and CBL/OP shall be responsible for 1/3). Notwithstanding the foregoing, with respect to any multi-year Overage Rent dispute relating to both periods prior to the Closing and periods after the Closing, Contributors shall have the right to settle such dispute with respect to periods prior to the Closing, and upon consummation of such settlement, if CBL/OP does not settle such dispute with respect to periods after the Closing simultaneously, Contributors shall have no obligation to bear any share of court costs, legal fees or other costs pertaining to such dispute incurred after consummation of such settlement.