Rents. Rents as and when collected. Any Rents collected by or on behalf of Owner (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted as of the Adjustment Point, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser. 6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers. 6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies. 6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Rents. Rents shall be adjusted and prorated as of the Closing ----- Date as follows:
(i) With respect to prepaid Rents received by the Contributing Parties prior to the Closing Date relating to the calendar month in which the Closing occurs, such Rents shall be adjusted at the closing between the Contributing Parties and when collectedthe Partnership.
(ii) With respect to delinquent Rents, to the extent that the Partnership receives Rents under the Leases (including monthly payments of escalation rents and "pass throughs") within six (6) months following the Closing Date, the Partnership shall render an accounting to the Contributing Parties with respect thereto, and the amount of such Rents shall be applied in the following order of priority: (i) first, to the calendar month in which the Closing occurred, (ii) then to the calendar month immediately preceding the calendar month in which the Closing occurred, (iii) then to the calendar months following the calendar month in which the Closing occurred until such Tenant is current on all post-Closing Rents and (iv) then to the payment of any remaining delinquent Rents. Any Rents collected by Notwithstanding the foregoing, the Contributing Parties shall have the right, prior to or within thirty (30) days after the Closing, to negotiate an agreement (a "Settlement Agreement"), -------------------- on behalf of Owner the Partnership, with Dynamedics (which, a Tenant at 200 Summit Lake Drive) and/or MGW Realty (a Ten▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇et) with respect to delinquent re▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ Tenants to the Contributing Parties for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent the period prior to the Closing Date provided such Settlement Agreement (whether due and payable prior to or subsequent to the Adjustment Pointi) shall be adjusted as of the Adjustment Point, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, provides that all payments made thereunder shall be paid by Purchaser or Owner directly to the Sellers Partnership and (ii) does not impose any affirmative obligations (other than obligations of a de minimis or ministerial nature) on the Partnership in ---------- favor of such Tenants. The Partnership hereby assigns all of its interest in the Settlement Agreements to the Contributing Parties subject to the terms of the next sentence. In the event that the Partnership enters into such a Settlement Agreement, then any amounts paid thereunder by such Tenants shall, provided such Tenants are not more than one month delinquent in the payment of post-Closing Rents, be paid by the Partnership to the Contributing Parties within fifteen three (153) Business Days after receipt thereof by the Partnership. The Contributing Parties shall be identified as third party beneficiaries of the Settlement Agreements and the Partnership shall not enter into any agreements or amendments with such Tenants which would adversely affect the Contributing Parties' interest therein.
(iii) Not later than ninety (90) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month fiscal year in which the Closing occurs with respect to which escalation rents and "pass throughs" are payable under each Lease, there shall be a calculation of the portion of such rents to which a Contributing Party shall be entitled, which portions shall be equal to a fraction, the numerator of which is the number of days in said fiscal year with respect to each such Lease which elapsed prior to the Closing Date and the denominator of which is the total number of days in said fiscal year, and the Partnership shall be entitled to the remaining portion of such Rents. If a Contributing Party has received escalation rents and/or "pass throughs" with respect to any Lease for such fiscal year in excess of the amount to which it is entitled pursuant hereto, such excess shall be paid by such Contributing Parties to the Partnership within thirty (d30) thendays after the date of such calculation. If the Partnership has received escalation rents and "pass throughs" with respect to any Lease for such fiscal year in excess of the amount to which it is entitled pursuant hereto, such excess shall be paid by the Partnership to the appropriate Contributing Party within thirty (30) days after the date of such calculation. Notwithstanding anything herein to the contrary, the apportionment of "pass throughs" shall be as set forth above only to the extent not already applied pursuant the item which is the subject of the "pass through" was adjusted at Closing.
(iv) If, for a period of 12 months subsequent to clause (b) Closing, any Tenant shall dispute the calculation of this sentenceany escalation rents or "pass throughs" relating to the period prior to the Closing Date, or there shall be deemed to be a reconciliation of such amounts and such dispute or reconciliation shall result in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect a rent credit being owed to any unexpired grace periodssuch Tenant, then the applicable Contributing Party shall remit such amount to the Partnership and such Contributing Party shall indemnify and hold the Partnership harmless from any and all claims, suits, actions, damages and expenses resulting from such Contributing Party's failure to remit such sums.
(v) as of the last day of the month immediately preceding the month in which Subject to Section 7.1(b)(ii) hereof, (i) any Rents received by any Contributing Party prior to the Closing occursDate which Rents relate to the period subsequent to the Closing Date shall be credited to the Partnership as an adjustment on the Closing Date, all as set forth on such list. Any amounts collected and (ii) any Rents received by or on behalf of Owner from each Tenant which, any Contributing Party after the Closing Date shall immediately be remitted to the Partnership and disbursed in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as terms of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellersthis Section 7.1(ii).
6.1.2 Purchaser (vi) the Partnership shall cause Owner bill Tenants for escalation payments and any successors to Owner to exert "pass ▇▇▇▇ughs" as required by the Leases. The Partnership shall use commercially reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if all Rents due to the Sellers pursuant to the provisions of subsection 6.1.1Leases, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In but in no event shall Purchaser or Owner the Partnership be obligated to institute initiate legal proceedings to collect such Rents. Contributing Parties shall have no right to commence any actions or legal proceedings or to seek the eviction of any Tenant in order to collect any such delinquenciesamounts which may be owed by any Tenants, except with respect to those amounts described in the second sentence of Section 7.1(b)(ii) hereof.
6.1.3 Following the Closing, Purchaser (vii) The provisions of this Section 7.1(b) shall submit or cause survive Closing (subject to be submitted to the Sellers, within 30 days after the end any specific survival periods set forth in any subparagraph of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statementsthis Section 7.1(b)).
Appears in 1 contract
Sources: Contribution Agreement (Reckson Associates Realty Corp)
Rents. Rents as and when collected. Any Rents collected Rents, including without limitation all payments received by or on behalf of Owner (which, for purposes of this Section 6.1, shall include Rents collected by Seller from any successor to Owner and by Tenants under any property manager or other agent acting for Owner or any such successor) subsequent Leases applicable to the Closing (whether due Construction Residence and payable all payments of all Residents under any Resident Agreements received prior to or subsequent to the Adjustment Point) Residence Closing Date shall be adjusted prorated as of the Adjustment Point, applicable Residence Closing Date and any the portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the beginning with such Residence Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, Date shall be credited to Purchaser by the Sellers at the such Residence Closing. As used Any checks for any such rental payments received after such Residence Closing by Seller and belonging in this Section 6.1 their entirety to Purchaser shall be promptly endorsed to Purchaser by Seller and promptly transmitted to Purchaser, and any checks for any rental payments received after such Residence Closing by Seller and belonging in part to Seller and in part to Purchaser shall be promptly deposited by Seller and the term "costs part thereof belonging to Purchaser shall be promptly paid to Purchaser and the balance shall be retained by Seller. In the event that on such Residence Closing Date there shall be any unpaid rental payments due under any Lease, then (i) for a period of collection" ninety (90) days after the Residence Closing, any rental payment received by Purchaser with respect to such Lease subsequent to such Residence Closing Date shall mean be applied first to pay the current portion of such rental payment due Seller under such Lease and include the remaining portion of such rental payment, to the extent applicable to a period beginning on or after such Residence Closing Date, shall be retained by Purchaser in satisfaction of amounts owed to it, and (ii) thereafter Purchaser may apply such amounts first to amounts owed to it. During such ninety (90) day period, Purchaser shall use its reasonable attorneys' fees and other costs incurred efforts in collecting any Rentsthe ordinary course of business to collect for Seller amounts owed to Seller of which it has knowledge, but shall not include the regular fees payable be required to employ counsel or any property manager collection agency or to initiate litigation, ejectment proceeding or use any extraordinary means of the Property, the payroll costs collection. Seller shall at all times be entitled to pursue collection of any of the Sellers'amounts owed to it, Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant cooperate with Seller in order to collect any such delinquenciesconnection therewith.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Alternative Living Services Inc)
Rents. Rents as Ground Rent and when collectedother charges under the Ground Lease shall be prorated at Closing with Buyer reimbursing Seller for any rent or charges paid prior to Closing, but which are attributable to periods from and after the Closing Date. Any Rents Buyer will receive a credit at Closing for all rents collected by or on behalf of Owner (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted as of the Adjustment Point, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If Seller prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly Date and allocable in whole or in part to periods subsequent to the Adjustment Point, period from and after the portion thereof so allocable to periods subsequent to Closing Date based upon the Adjustment Point, net actual number of costs of collection properly allocable thereto, if any, days in the month. No credit shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean given Seller for accrued and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees unpaid rent or any other internal costs non-current sums due from Tenants until these sums are paid, and Seller shall retain the right to collect any such rent provided Seller does not ▇▇▇ to evict any tenants or overhead of terminate any Leases. Buyer shall cooperate with Seller after the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver Closing Date to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents collect any rent under the Leases which has accrued as of the Adjustment Point (without giving effect Closing Date; provided, however, Buyer shall not be obligated to ▇▇▇ any unexpired grace periods), which list Tenants or exercise any legal remedies under the Leases or to incur any expense over and above its own regular collection expenses. All payments collected from Tenants after the Closing Date shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed applied to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect then to any unexpired grace periods) as of rent due to Buyer for the last day of period after the month immediately preceding Closing Date through the month in which the Closing occurssuch payment was made, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect finally to any unexpired grace periods) as of rent due to Seller for the last day of period prior to Closing Date; provided, however, notwithstanding the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable theretoforegoing, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and Seller collects any successors to Owner to exert reasonable efforts for a period of two (2) years payments from Tenants after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 Date through its own collection efforts and the amount thereofTenants indicate that such payment is specifically for past-due amounts owed to Seller, as, when and Seller may first apply such payments to rent due Seller for the period prior to the extent collected by or on behalf of Owner shallClosing Date. Subject to this subsection, if Seller receives any payment from a Tenant for rent due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly and payable for any period from and after the collection thereof by Owner. In Closing Date, then Seller agrees to promptly endorse and forward such un-cashed check or payment to Buyer no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek later than the eviction of any Tenant in order to collect any such delinquenciesnext business day.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Healthcare Trust of America, Inc.)
Rents. Rents as All paid rents, including revenues and when collected. Any Rents collected charges of any kind, together with any other sums paid by or on behalf of Owner the tenant (whichother than security deposit), for purposes of this Section 6.1under the Lease, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted prorated as of the Adjustment PointClosing Date. In the event that, and at the time of Closing, there are any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser past due or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser delinquent rents owing by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager tenant of the Property, the payroll costs of any Distributees shall have the exclusive right to collect such past due or delinquent rents and shall remit to Highwoods in cash to the extent, and only to the extent, that the rents received by the Distributees from the tenant owing past due or delinquent rents exceed the sum of the Sellers'aggregate rents and other sums payable by such tenant for periods from and after the Closing Date to the date of receipt, Owner's or Purchaser's employees or any other internal costs or overhead and then only if Highwoods has notified the Distributees at Closing that the tenant under the Lease is delinquent in its rent as of the SellersClosing Date. The Distributees will make a commercially reasonable good faith effort to collect after Closing any rents which are delinquent and owing to Highwoods at Closing, Owner but the Distributees shall have no obligation to file suit to collect such amounts, provided if the Distributees fail to file suit to collect such amounts after being requested to do so by Highwoods, Highwoods shall have the right to collect all rents owed to Highwoods at the time of Closing, which shall include Highwoods’ filing of suit, if necessary, to collect such amounts. In the event that, after Closing, Highwoods receives any payments of rent or Purchaser.
6.1.1 other sums due from the tenant under the Lease that relate to periods from and after Closing, Highwoods shall promptly forward to the Distributees such payments. It is agreed by the Distributees that the sums to be paid by the tenant referred to in this Section 7(e)(iii) shall include all property operation costs “pass throughs” for the year 2004 not paid on a monthly basis, but rather at the end of a calendar year after being invoiced therefor. These sums shall be provided and paid to Highwoods and the Distributees when paid by the tenant under the Lease. The Sellers Distributees shall use reasonable efforts to invoice the tenant for “pass throughs” as promptly as is practicable after Closing (but in no event shall the Distributees be required to do so until allowed under the Lease), provided Highwoods must furnish to the Distributees all applicable information regarding the amount of “pass through” operating expenses to be paid by the tenant under the Lease for the calendar year 2004. During the period after Closing, the Distributees shall deliver to Purchaser at Closing a list of Highwoods any and all Tenants that are delinquent in payment of Rents rents accrued but uncollected as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, Date to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts subsequently collected by or on behalf of Owner from each Tenant whichthe Distributees, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shallthe Distributees receive such rents, if due shall apply rents received after Closing to the Sellers pursuant extent the same are delinquent first to payment of current Rent then due, and thereafter to delinquent rents (other than “true up” payments received from the tenant attributable to a year-end reconciliation of actual and budgeted pass-through payments which shall be allocated between Highwoods and the Distributees pro rata in accordance with their respective period of ownership as set forth in this Section 7(e)(iv) below) but only after rent due and owing to the provisions Distributees have been paid in full, including any delinquent rent. If any security deposits are in the form of subsection 6.1.1a letter of credit, be paid by Owner Highwoods shall assign its interest in the letter of credit to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted Distributees (to the Sellers, within 30 days after extent assignable) and deliver the end original letter of each calendar quarter up credit to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, Distributees at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statementsClosing.
Appears in 1 contract
Rents. Rents as All rents and when collected. Any Rents collected by or on behalf other sums receivable from tenants of Owner (whichthe Property, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner which were earned and by any property manager or other agent acting for Owner or any such successor) subsequent attributable to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted as of the Adjustment Point, and any portion thereof properly allocable to periods period prior to the Adjustment PointDate, net of costs of collection properly allocable thereto, if any, shall will be retained by Seller to the extent that such rents have been collected on or before the Closing Date. Rents earned and attributable to the period beginning on the Adjustment Date and thereafter will be paid to Buyer by Purchaser the tenants, or Owner credited to the Sellers within fifteen Buyer at Closing (15) days after the end of the calendar month in which if such rents are received by Seller on or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (whichDate). All payments from tenants, for on account of rent or otherwise, received by Seller after the purposes of this Section 6.1Adjustment Date, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent whether attributable to the Adjustment Point, the portion thereof so allocable period prior to periods subsequent to or after the Adjustment PointDate, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be held in payment of Rents (or the specific component of rents) which are delinquent (without giving effect trust by Seller for Buyer and shall be promptly delivered to any unexpired grace periods) Buyer by Seller for application as of the last day of the month immediately preceding the month provided in which the Closing occursthis Section 14.1.2. All payments from tenants, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month rent or otherwise, received after the month in Closing Date by Buyer and all amounts received from Seller by Buyer pursuant to the immediately preceding sentence, shall be applied first to rent or other sums due under the Leases attributable to the period beginning on the Adjustment Date and continuing thereafter, and then to payment to Seller on account of rents which were earned and attributable to the Closing occurs period prior to the Adjustment Date but which have not been paid when due and (d) then, only to the extent not already applied pursuant such delinquency is identified in the Seller’s Rent Roll and Delinquency Report delivered to clause Buyer at Closing (b) “Delinquent Rentals”); provided that in no event shall Buyer be obligated to make any such payment to Seller on account of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) Delinquent Rentals which are delinquent received by Buyer on or after the date which is twelve (without giving effect to any unexpired grace periods12) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years months after the Closing Date, and Buyer shall be entitled to bill and collect any delinquencies set forth on the list delivered retain all such amounts. Any costs incurred by ▇▇▇ Sellers pursuant Buyer in collection of Delinquent Rentals shall be retained by or paid to subsection 6.1.1 and the amount thereof, as, when and Buyer prior to the extent collected by payment to Seller on account of Delinquent Rentals. Buyer shall have no obligation to collect or attempt to collect Delinquent Rentals or enforce any Leases on behalf account of Owner shall, if due Delinquent Rentals. Seller shall have no right to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly enforce Leases or collect Delinquent Rentals on or after the Closing Date without the prior written consent of Buyer, which may be withheld in Buyer’s sole discretion, and any such permitted enforcement or collection thereof by Ownereffort shall be at Seller’s sole expense. In no event shall Purchaser Seller’s enforcement include any termination, forcible detainer, eviction or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquenciesother possessory action.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Agreement of Sale (Tier Reit Inc)
Rents. Rents as Seventy-five percent (75%) of all paid rents, including revenues and when collected. Any Rents collected charges of any kind, together with any other sums paid by or on behalf of Owner the tenant (whichother than security deposit), for purposes of this Section 6.1under the Lease, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted prorated as of the Adjustment PointClosing Date. In the event that, and at the time of Closing, there are any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser past due or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser delinquent rents owing by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager tenant of the Property, GT Gateway shall have the payroll costs of any exclusive right to collect such past due or delinquent rents and shall remit to Highwoods in cash to the extent, and only to the extent, that the rents received by GT Gateway from the tenant owing past due or delinquent rents exceed the sum of the Sellers'aggregate rents and other sums payable by such tenant for periods from and after the Closing Date to the date of receipt, Owner's or Purchaser's employees or any other internal costs or overhead and then only if Highwoods has notified GT Gateway at Closing that the tenant under the Lease is delinquent in its rent as of the SellersClosing Date. GT Gateway will make a commercially reasonable good faith effort to collect after Closing any rents which are delinquent and owing to Highwoods at Closing, Owner but GT Gateway shall have no obligation to file suit to collect such amounts, provided if GT Gateway fails to file suit to collect such amounts after being requested to do so by Highwoods, Highwoods shall have the right to collect all rents owed to Highwoods at the time of Closing, which shall include Highwoods’ filing of suit, if necessary, to collect such amounts. In the event that, after Closing, Highwoods receives any payments of rent or Purchaser.
6.1.1 The Sellers other sums due from the tenant under the Lease that relate to periods from and after Closing, Highwoods shall promptly forward to GT Gateway such payments. It is agreed by GT Gateway that the sums to be paid by the tenant referred to in this Section 7(e)(iii) shall include all property operation costs “pass throughs” for the years 2004 and 2005 not paid on a monthly basis, but rather at the end of a calendar year after being invoiced therefor. These sums shall be provided and paid to Highwoods and GT Gateway, as applicable, when paid by the tenant under the Lease. GT Gateway shall use reasonable efforts to invoice the tenant for “pass throughs” as promptly as is practicable after Closing (but in no event shall GT Gateway be required to do so until allowed under the Lease), provided Highwoods must furnish to GT Gateway all applicable information regarding the amount of “pass through” operating expenses to be paid by the tenant under the Lease for the calendar year 2004. During the period after Closing, GT Gateway shall deliver to Purchaser at Closing a list of Highwoods any and all Tenants that are delinquent in payment of Rents rents accrued but uncollected as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, Date to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts subsequently collected by or on behalf of Owner from each Tenant whichGT Gateway, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shallGT Gateway receive such rents, if due shall apply rents received after Closing to the Sellers pursuant extent the same are delinquent first to payment of current Rent then due, and thereafter to delinquent rents (other than “true up” payments received from the tenant attributable to a year-end reconciliation of actual and budgeted pass-through payments which shall be allocated between Highwoods and GT Gateway pro rata in accordance with their respective period of ownership as set forth in this Section 7(e)(iv) below) but only after rent due and owing to GT Gateway have been paid in full, including any delinquent rent. If any security deposits are in the form of a letter of credit, Highwoods shall assign its interest in the letter of credit to GT Gateway (to the provisions extent assignable) and deliver the original letter of subsection 6.1.1, be paid by Owner credit to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquenciesGT Gateway at Closing.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Highwoods Properties Inc)
Rents. Rents and other amounts payable under the Leases shall be apportioned on the basis of the period for which the same is payable and if, as and when collected. Any Rents collected by , as follows:
i. Rents, common area charges, escalations, and other tenant reimbursements (other than Deposits) payable under the Leases (collectively, the "Rents") for the Property or on behalf of Owner (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) portions thereof shall be adjusted prorated, except that no proration shall be made for Rents not received by Seller as of the Adjustment PointClosing Date (hereinafter called the "Uncollected Rents"). During the period after Closing, Purchaser shall deliver to Seller any and all Uncollected Rents accrued but uncollected as of the Closing Date, to the extent subsequently collected by Purchaser, as follows. Amounts collected by Purchaser from Tenants owing Uncollected Rents shall be applied first to current amounts owed by such Tenant and accruing on or after the Closing Date, then to Uncollected Rents owing for the rent period during which the Closing occurred (such amount to be prorated between Purchaser and Seller as provided herein), and any portion thereof properly allocable to periods prior to then the Adjustment Point, net of costs of collection properly allocable theretoremainder, if any, to Seller as Uncollected Rents owing prior to the rent period during which the Closing occurred. Percentage rents for each applicable Lease shall be prorated on the basis of the number of days elapsed during the Tenant’s percentage rent period as of the Closing Date and not on the basis of the amount of the Tenant’s sales which accrued during such percentage rent period as of the Closing Date. All Deposits received by Seller from any Tenant under an existing Lease shall be paid over to Purchaser, net of any amounts that have been applied by Seller in accordance with the applicable Lease or returned to the applicable Tenant. Seller shall have no right to pursue the collection of Uncollected Rents which accrued prior to Closing. For a period of one (1) year after Closing, Purchaser shall continue to b▇▇▇ Tenants for Uncollected Rents and use reasonable efforts to collect such Uncollected Rents, provided that in no event shall Purchaser have any obligation to commence any legal proceedings against any Tenant or otherwise pursue any remedies against any such Tenant. Any sums received by Purchaser or Owner to the Sellers which Seller is entitled shall be held for Seller on account of said Uncollected Rents payable to Seller, and Purchaser shall remit to Seller any such sums received by Purchaser to which Seller is entitled within fifteen ten (1510) business days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Pointreceipt thereof. If prior to Seller receives any amounts after the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) Date which are properly allocable attributable, in whole or in part part, to periods subsequent any period after the Closing Date, Seller shall remit to Purchaser that portion of the Adjustment Point, moneys so received by Seller to which Purchaser is entitled within ten (10) business days after receipt thereof.
ii. Any prepaid Rents shall be retained by Seller and the portion amount thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Realty Capital - Retail Centers of America, Inc.)
Rents. Rents as (including, without limitation, estimated pass-through payments, payments for common area maintenance reconciliations and when collected. Any Rents all additional charges payable by tenants under the Leases, including insurance (collectively, “Rents”)), collected by or on behalf of Owner (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable Seller prior to or subsequent to the Adjustment Point) Closing shall be adjusted prorated as of the Adjustment Pointapplicable Closing Date; provided, and however, that any portion thereof properly allocable credit received by Purchaser in connection with prepaid Rents attributable to the period following the Closing shall be net of management fees which are due Seller for periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, During the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause deliver to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to Seller any and including the calendar quarter ending on March 31, 2006 all Rents accrued but only so long as any delinquencies that existed uncollected as of the Adjustment Point remain outstandingapplicable Closing Date to the extent subsequently collected by Purchaser; provided, however, Purchaser shall apply Rents received after Closing first to payment of current Rent then due, and thereafter to delinquent Rents (other than “true up” payments received from tenants attributable to a statement year-end reconciliation of actual and budgeted pass-through payments which sets shall be allocated among Seller and Purchaser pro rata in accordance with their respective period of ownership as set forth all collections made in Section 4.2.5 below). Seller may not, without Purchaser’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, commence any lawsuit against any tenant after the date of this Agreement and/or the Closing, provided, however, after delivery to Purchaser by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers Seller of: (i) a Tenant Litigation Indemnity (as hereinafter defined), and (ii) a written explanation of the last quarterly statement required hereunderalleged dispute between Seller and the tenant, at Seller may, without Purchaser’s prior written consent, commence a lawsuit against any tenant to collect delinquent Rents due Seller with respect to the Sellers' expense during business hours time period prior to Closing. Notwithstanding the foregoing, Seller agrees that any such lawsuit shall be limited to a money damages claim against the applicable tenant to collect delinquent Rents, and on reasonable prior notice to Purchaser, to examine and audit so much of in no event shall Seller seek the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.termination
Appears in 1 contract
Sources: Purchase and Sale Agreement (Centerpoint Properties Trust)
Rents. Rents as and when collected. Any Rents collected by or on behalf of Owner (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) The following items shall be adjusted as of the Adjustment Point, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or prorated on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter an accrual basis up to and including the calendar quarter ending Proration Date, on March 31, 2006 but only so long as any delinquencies that existed as the basis of the Adjustment Point remain outstandingmost recent ascertainable amounts thereof or on the basis of such other reasonably reliable information with respect thereto: (i) current and advance rental payments under the Leases; (ii) operating expense and insurance escalations and adjustments and other charges payable by the Tenant to the landlord under the Lease, a statement which sets forth all collections excluding any contributions toward the payment of Taxes (collectively, "Expense Contributions"); (iii) any utility charges and deposits made by Seller with respect to utilities for which the landlord under the Lease is responsible; and (iv) all other items of accrued or on behalf prepaid income and expenses, other than delinquent rental payments under the Lease. Such prorations shall not account for or reflect any of Owner from the Tenants foregoing items to the extent Tenant is delinquent in payment of the same. When actual Expense Contributions for the year in which owe Closing occurs are known (and the year preceding the year in which Closing occurs if such delinquencies through amounts are not known at Closing), Purchaser shall ▇▇▇▇ the end Tenant for the additional amount, if any, owed by such Tenant as a result of non-payment or underpayment of the Tenant's share of Expense Contributions for the year to which such Expense Contributions apply under the Tenant's Lease. Upon collection of such calendar quarteramounts the same shall be prorated between Seller and Purchaser, and Purchaser shall pay Seller all amounts due Seller for the period prior to the Proration Date as soon as reasonably practical. The Sellers or their designee In the event that the Expense Contributions collected by Seller for the period up to and including the Proration Date exceed the actual Expense Contributions for such period, Seller shall pay to Purchaser an amount equal to the excess of the Expense Contributions collected over the actual Expense Contributions for such period as soon as reasonably practical after such Expense Contributions are known. Seller shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of inspect the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order the Subject Property to verify that Purchaser is remitting to Seller all amounts to be remitted to Seller according to the collections reported by terms of this Agreement, and for any other purpose related to Seller's prior ownership of the Subject Property. Notwithstanding the foregoing, if the amounts to be prorated hereunder can be established with reasonable certainty at Closing, the appropriate party shall receive credit therefor at Closing, which credit shall be final and in lieu of any proration contemplated hereby.
(i) to Seller for amounts due or accrued from Tenant prior to the Proration Date, then (ii) the balance to Purchaser. If Purchaser recovers any such delinquent amounts, the same shall be distributed in the following order of priority: (i) to Purchaser for amounts due or Owner accrued from Tenant from and after the Closing Date, then (or any successor of Ownerii) in such quarterly statementsthe balance to Seller, provided the same has not previously been credited to Seller as provided above.
Appears in 1 contract
Sources: Purchase Agreement (Wells Real Estate Investment Trust Inc)
Rents. Rents as All fixed and when collectedadditional rentals under the Leases, and other tenant charges. Any Rents collected by Seller shall deliver or on behalf of Owner provide a credit in an amount equal to all prepaid rentals for periods after the Closing Date (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager the extent not applied or other agent acting for Owner or any such successor) subsequent forfeited prior to the Closing (whether due and payable prior Date) to or subsequent to Buyer on the Adjustment Point) shall be adjusted Closing Date. Rents which are delinquent as of the Adjustment Point, Closing Date shall not be prorated on the Closing Date. Buyer shall include such delinquencies in its normal billing and any portion thereof properly allocable shall use commercially reasonable efforts to periods prior to collect the Adjustment Point, net same for a period of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen ninety (1590) days after the end Closing Date (but Buyer shall not be required to litigate or declare a default in any lease). To the extent Buyer receives rents (other than "Additional Amounts", as hereinafter defined) on or after the Closing Date, such payments shall be applied first toward then current rent owed to Buyer in connection with the applicable lease for which such payments are received, and finally toward any excess monies received shall be applied toward the payment of any delinquent rents, with Seller's share thereof being promptly delivered to Seller. Until the date that is ninety (90) days after the Closing Date, Buyer may not waive any delinquent rents nor modify a lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive a share of charges or amounts without first obtaining Seller's written consent. Common area charges, taxes, operating expense and other similar expense reimbursement obligations of the calendar month tenants under the Leases, as well as any percentage payable thereunder (collectively, "Additional Amounts") shall be prorated effective as of the Closing Date. The parties will finalize such Additional Amounts prorations on the Closing Date or as soon as practicable thereafter (but in which received by or on behalf any event not later than December 15, 1997). Proration of Owner, but subject to the further provisions of this Section 6.1 expense items contained in the case calculation of Rents due prior the Additional Amounts shall be made on the basis that Seller shall be entitled to reimbursement of the Adjustment Point. If applicable expenses paid by Seller (annualized or otherwise appropriately apportioned) prior to the Closing Owner shall have collected any Rents (whichDate. To the extent that, for the purposes of this Section 6.1based on such determinations, shall include Rents collected by any agent acting for Owner) which are properly allocable Seller has received amounts in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature excess of the amount due Seller, then Seller shall deliver such excess amount to Buyer on the Closing Date (or if determined thereafter, then within 15 days of such determination). To the extent that Seller has received an amount less than the amount so due, itemizing separately fixed monthly rentBuyer shall deliver such shortfall amount to Seller on the Closing Date (or if determined thereafter, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, then within 15 days of such determination). The amount of percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) allocated to Seller with respect to each Tenant Lease for the month lease year (the "Current Lease Year") in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants Date occurs shall be deemed that amount equal to (i) the amount by which (A) the tenant's gross receipts (to the extent taken into account in determining percentage rent under such Tenant Lease) for that portion of such Current Lease Year occurring prior to the Closing Date exceed (B) the "Allocable Base Amount", multiplied by (ii) the percentage specified in such Tenant Lease to be used in payment determining such tenant's percentage rent for such Current Lease Year. The "Allocable Base Amount" means that portion of Rents (the "Base Amount" for such Current Lease Year determined by multiplying such Base Amount for the entire Current Lease Year by a fraction, the numerator of which is the number of days in such Current Lease Year occurring prior to the Closing Date and the denominator of which is the number of days of such Current Lease Year. "Base Amount" is the amount specified in each Tenant Lease for such Current Lease Year that must be exceeded by the sales of the tenant during such Current Lease Year before such tenant shall be obligated thereunder to pay percentage rent for such Current Lease Year. Buyer shall not be obligated to pay or credit Seller any sum on account of the specific component proration of percentage rent as aforesaid unless and until the percentage rent to be prorated as aforesaid shall be received by Buyer. With respect to delinquent rents) which , Additional Amounts and any other amounts or other rights of any kind respecting tenants who are delinquent (without giving effect to any unexpired grace periods) no longer tenants of the Property as of the last day of the month immediately preceding the month in which the Closing occursDate, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, Seller shall retain all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable rights relating thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Purchase Agreement (Carlyle Real Estate LTD Partnership Xiii)
Rents. Rents shall be apportioned as and when collected. Any Rents collected by or on behalf of Owner Transferee (which, for purposes of this Section 6.16.01, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successorTransferee) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted as of the Adjustment Point, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner Transferee to the Sellers within fifteen (15) days Transferor promptly after the end of the calendar month in which received collection thereof by or on behalf of OwnerTransferee, but subject to the further provisions of this Section 6.1 6.01 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner Transferor shall have collected collected, or if subsequent to the Closing Transferor shall collect, any Rents (which, for the purposes of this Section 6.16.01, shall include Rents collected by any Managing Agent or other agent acting for OwnerTransferor) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser Transferee by the Sellers Transferor at the Closing. As used in this Section 6.1 (37)
(a) One week prior to the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers Closing Transferor shall deliver to Purchaser at Closing Transferee (i) a list of all Tenants that and Adjoining Owners which are delinquent in payment of Rents as of at the Adjustment Point (without giving effect to any unexpired grace periods)Point, which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount duedue itemizing separately, itemizing separately as applicable, fixed monthly rent, tax reimbursements, common area maintenance chargesmaintenance, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any, and (ii) a list of each Tenant and Adjoining Owner which paid percentage or overage rent based on sales or gross income during the fiscal year in which the Closing Date occurs and the amount so paid by each such Tenant or Adjoining Owner through the Adjustment Point. The first All amounts collected by or on behalf of Owner Transferee from each delinquent TenantTenant or Adjoining Owner within 30 days after the Closing, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and finally in payment of delinquent Rents (dor the specific components of Rents) thenwhich are in arrears as of the first day of the month in which the Closing occurs, to as set forth on such list. All amounts collected by Transferee from each delinquent Tenant or Adjoining Owner more than 30 days after the extent not already applied pursuant to clause (b) Closing, net of this sentencecosts of collection, if any, shall be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as then due on account of the last day of the each month immediately preceding after the month in which the Closing occurs, all next in payment of Rents (or the specific components of Rents) due for the month in which the Closing occurs and finally in payment of delinquent Rents (or the specific components of Rents) which are in arrears as of the first day of the month in which the Closing occurs, as set forth on such the aforesaid list. Any amounts collected by or on behalf of Owner Transferee from each delinquent Tenant or Adjoining Owner which, in accordance with the preceding sentencetwo sentences, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point38)
(b) or any prior month, net of costs of collection properly allocable thereto, if any, Transferee shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert use commercially reasonable efforts for a period of two (2) years after the Closing to bill ▇▇▇▇ and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers Transferor pursuant to subsection 6.1.1 Section 6.01(a) for a period of 18 months after the Closing and the amount thereof, as, when and to the extent collected by or on behalf of Owner Transferee, shall, if due to the Sellers Transferor pursuant to the provisions of subsection 6.1.1Section 6.01(a), be paid by Owner Transferee to the Sellers Transferor, net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by OwnerTransferee. In no event shall Purchaser or Owner Transferee be obligated to institute any actions or proceedings or to seek the eviction of any Tenant or Adjoining Owner in order to collect any such delinquencies.
6.1.3 (c) Following the ClosingClosing and upon Transferor's written request, Purchaser Transferee shall submit or cause to be submitted to the SellersTransferor, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March December 31, 2006 1999, but only so long as any delinquencies that existed as of the Adjustment Point remain outstandingshall be owed to Transferor, a statement which sets forth all collections made by or on behalf of Owner Transferee from the Tenants and Adjoining Owners which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee Transferor shall have the right from time to time following the Closing until 90 days after receipt by the Sellers Transferor of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to PurchaserTransferor's expense, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) Transferee as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) Transferee in such quarterly statements.
(d) Nothing contained in this Section 6.01 shall be deemed to prohibit Transferor, at its own expense and after giving Transferee notice thereof, from instituting any actions or proceedings in its own name against any Tenant or Adjoining Owner after the Closing in order to collect the amount of any delinquencies due in whole or in part to Transferor from such Tenant or Adjoining Owner; provided, however, that in no event shall (i) Transferor be entitled in any such action or proceeding to seek to evict any Tenant or Adjoining Owner or to recover possession of its space or (ii) Transferor be entitled to initiate any involuntary bankruptcy or similar proceeding against any Tenant or (39)
Appears in 1 contract
Sources: Contribution and Exchange Agreement (CBL & Associates Properties Inc)
Rents. Rents as Rents, additional rents, operating costs, and when collected. Any Rents other income of the Property (other than security deposits) collected by or on behalf Seller from the Tenants for the month of Owner (which, Closing. Purchaser shall also receive a credit against the Purchase Price payable by Purchaser to Seller at Closing for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager rents or other agent acting sums (not including security deposits) prepaid by the Tenants for Owner any period following the month of Closing, or any such successor) subsequent to otherwise, which includes the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted as remainder of the Adjustment Point, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be prepaid rent paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of OwnerAmerican Male, but subject to the further provisions of this Section 6.1 a Tenant in the case of Rents due prior to Building. Purchaser shall receive a credit against the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected Purchase Price payable by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver Seller to Purchaser at Closing a list for the total sum of all security deposits paid by Tenants under Leases and not theretofore applied to delinquent rent and other charges payable by the applicable Tenant. Seller hereby acknowledges that are delinquent in payment Purchaser shall not be legally responsible to Seller for the collection of Rents any uncollected rent or other income under any of the Leases that is past due or otherwise due and payable as of the Adjustment Point date of Closing, provided, Seller may, with Purchaser’s prior consent, such consent not to be unreasonably withheld, conditioned or delayed, bring a claim against any Tenant who has not paid rent due Seller prior to the date of Closing. Purchaser agrees that if (without giving effect to i) a Tenant is in arrears on the date of Closing in the payment of rent or other charges under such Tenant’s Lease, and (ii) upon Purchaser’s receipt of any unexpired grace periods)rental or other payment from such Tenant, which list shall set forth such Tenant is, or after application of a portion of such payment will be, current under such Lease in the amount payment of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent all accrued rental and other charges, if any. The first amounts collected by charges that become due and payable on the date of Closing or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be thereafter and in the payment of Rents (or the specific components any other obligations of Rents) for the month in which the Closing occurssuch Tenant to Purchaser, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors refund to Owner to exert reasonable efforts for a period Seller, out of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shallthe portion of such payment remaining after Purchaser deducts therefrom any and all sums due and owing it from such Tenant from and after the date of Closing, if due an amount up to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction full amount of any Tenant in order to collect any such delinquenciesarrearage existing on the date of Closing.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wells Real Estate Investment Trust Ii Inc)
Rents. Rents as and when collected. Any Rents collected by or on behalf of Owner Purchaser (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successorPurchaser) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted as of the Adjustment Point, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days Equitable promptly after the end of the calendar month in which received collection thereof by or on behalf of OwnerPurchaser, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner Equitable shall have collected collected, or if subsequent to the Closing Equitable shall collect, any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any the Managing Agent or other agent acting for OwnerEquitable) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.to
6.1.1 The Sellers Equitable shall deliver to Purchaser at Closing a list of all Tenants and Adjoining Owners at each Mall that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods)Point, which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance chargesmaintenance, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner Purchaser from each delinquent TenantTenant or Adjoining Owner, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be finally in payment of delinquent Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) in arrears as of the last first day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list; provided, however, that if at the Closing Date any Tenant or Adjoining Owner is more than thirty (30) days in arrears in payment of Rents (or any component of Rents), the first amounts collected by or on behalf of Purchaser from each such Tenant or Adjoining Owner on account of the Rents (or the specific component of Rents) as to which it is so delinquent, net of costs of collection, if any, shall be deemed in payment of such Rents (or such specific component of Rents) then due on account of any month after the month in which the Closing occurs, next in payment of such Rents (or such specific component of Rents) for the month in which the Closing occurs and finally in payment of such Rents (or such specific component of Rents) which are in arrears as of the first day of the month in which the Closing occurs, as set forth on such list. Any amounts collected by or on behalf of Owner Purchaser from each delinquent Tenant or Adjoining Owner which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.occurs
Appears in 1 contract
Rents. Rents as and when collected. Any Rents Buyer will receive a credit at the Close of Escrow for all rents collected by or on behalf Seller prior to the Close of Owner (which, Escrow and allocable to the period from and after the Close of Escrow based upon the actual number of days in the month. No credit shall be given Seller for purposes of this Section 6.1, shall include Rents collected by any successor to Owner accrued and by any property manager or other agent acting for Owner unpaid rent or any other non-current sums due from Tenant until these sums are paid, and Seller shall retain the right to collect any such successor) subsequent rent provided Seller does not ▇▇▇ to evict any tenants or terminate the Closing (whether due and payable prior Lease. Buyer shall cooperate with Seller after the Close of Escrow to or subsequent to collect any rent under the Adjustment Point) shall be adjusted Lease which has accrued as of the Adjustment PointClose of Escrow; provided, and any portion thereof properly allocable to periods prior to the Adjustment Pointhowever, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but Buyer shall not include be obligated to ▇▇▇ Tenant or exercise any legal remedies under the Lease or to incur any expense over and above its own regular fees payable to any property manager collection expenses. All payments collected from Tenant after Close of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers Escrow shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as Close of Escrow occurs, then to any rent due to Buyer for the Adjustment Point) or period after the Close of Escrow and finally to any rent due to Seller for the period prior monthto the Close of Escrow; provided, net of costs of collection properly allocable theretohowever, notwithstanding the foregoing, if anySeller collects any payments from Tenant after the Close of Escrow through its own collection efforts, shall be paid promptly by Purchaser Seller may first apply such payments to rent due Seller for the period prior to the Sellers.
6.1.2 Purchaser shall cause Owner Close of Escrow. Buyer and Seller agree to promptly pay any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and all amounts collected hereunder to the extent collected by or on behalf of Owner shallparty to whom such amounts are owed in accordance with the provisions hereof. Notwithstanding anything herein to the contrary, if due to the Sellers pursuant to the provisions of subsection 6.1.1Seller pays a Must Cure Lien arising by, be paid by Owner to the Sellers net of costs of collectionthrough or under Tenant, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event Seller shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order retain all rights to collect any such delinquenciesamount from Tenant.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Purchase and Sale Agreement (NNN Healthcare/Office REIT, Inc.)
Rents. Rents as All collected rents and when collected. Any Rents collected by or on behalf of Owner (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to payments from tenants under the Closing (whether due and payable prior to or subsequent to the Adjustment Point) leases shall be adjusted prorated between Seller and Buyer as of the Adjustment Point, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If day prior to the Closing Owner shall have collected any Rents (which, for Date in accordance with the purposes of proration principles set forth in this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the ClosingArticle 5. As used in this Section 6.1 herein, the term "costs of collectionRevenue" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly base rent, tax minimum rent, fixed rent, percentage rent, additional rent, expense reimbursements, operating cost pass-throughs, utility charges, common area maintenance charges, electric administrative charges, reimbursements for property taxes and assessments, insurance charges for tenant services, and any other sums or charges for overtime services, percentage rent payable to Seller under the Leases and other charges, if anythe REA's. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, Seller shall (a) first be deemed entitled to be in payment of Rents (or all Revenue attributable to any period under the specific components of Rents) for the month in which Leases and REA's to but not including the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants Date. Buyer shall be deemed entitled to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect all Revenue attributable to any unexpired grace periods) period under the Leases and REA's on and after the Closing Date. Revenue due to Seller and not collected as of the last day Closing Date shall not be prorated at the time of Closing, but Buyer shall make a good faith effort for one year after Closing to collect the month immediately preceding same on Seller's behalf and to tender the month in same to Seller upon receipt (which obligation of Buyer shall survive the Closing occursand not be merged therein); provided, as set forth however, that all Revenue collected by Buyer on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which Closing Date shall first be applied to all amounts due under the Closing occurs Leases or REA's as the case may be, at the time of collection (i.e., current rents and sums due Buyer as the current owner and landlord) with the balance (dif any) thenpayable to Seller, but only to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are amounts delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such listand actually due Seller and after deducting Buyer's reasonable collection expense. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee Buyer shall have the exclusive right and obligation to collect the sums due Seller under the Leases for six (6) months following Closing, but Seller hereby retains its rights to pursue any tenant under any lease which has been terminated and under which the tenant has vacated its premises prior to Closing, or any other lease from time and after the date that is six (6) months after Closing for sums due Seller for periods attributable to time following Seller's ownership of the Property; provided, however, that Seller shall not be permitted to commence or pursue any legal proceedings against any tenant seeking eviction of such tenant or the termination of the underlying lease. Seller's rights under the immediately preceding sentence shall survive the Closing until 90 days and not be merged therein. Buyer shall receive a credit against the Purchase Price for pre-paid Revenue covering the period on and after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statementsClosing.
Appears in 1 contract
Rents. Rents as Rent and when collectedother charges under the Ground Lease shall be prorated at Closing with Buyer reimbursing Seller for any rent or charges paid prior to Closing but which are attributable to periods from and after the Closing Date. Any Rents Buyer will receive a credit at Closing for all rents collected by or on behalf of Owner (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted as of the Adjustment Point, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If Seller prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly Date and allocable in whole or in part to periods subsequent to the Adjustment Point, period from and after the portion thereof so allocable to periods subsequent to Closing Date based upon the Adjustment Point, net actual number of costs of collection properly allocable thereto, if any, days in the month. No credit shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean given Seller for accrued and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees unpaid rent or any other internal costs non-current sums due from Tenants until these sums are paid, and Seller shall retain the right to collect any such rent provided Seller does not ▇▇▇ to evict any tenants or overhead of terminate any Leases. Buyer shall cooperate with Seller after the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver Closing Date to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents collect any rent under the Leases which has accrued as of the Adjustment Point (without giving effect Closing Date; provided, however, Buyer shall not be obligated to ▇▇▇ any unexpired grace periods), which list Tenants or exercise any legal remedies under the Leases or to incur any expense over and above its own regular collection expenses. All payments collected from Tenants after the Closing Date shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed applied to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect then to any unexpired grace periods) as of rent due to Buyer for the last day of period after the month immediately preceding Closing Date through the month in which the Closing occurssuch payment was made, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect finally to any unexpired grace periods) as of rent due to Seller for the last day of period prior to Closing Date; provided, however, notwithstanding the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable theretoforegoing, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and Seller collects any successors to Owner to exert reasonable efforts for a period of two (2) years payments from Tenants after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 Date through its own collection efforts and the amount thereofTenants indicate that such payment is specifically for past-due amounts owed to Seller, as, when and Seller may first apply such payments to rent due Seller for the period prior to the extent collected by or on behalf of Owner shallClosing Date. Subject to this subsection, if Seller receives any payment from a Tenant for rent due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly and payable for any period from and after the collection thereof by Owner. In Closing Date, then Seller agrees to promptly endorse and forward such un-cashed check or payment to Buyer no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek later than the eviction of any Tenant in order to collect any such delinquenciesnext business day.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Healthcare Trust of America, Inc.)
Rents. Rents as As it relates to (i) rents, late charges, interest receivable, partial payments and when collected. Any Rents collected by or on behalf of Owner other associated charges and revenues due under any Lease at the Property (whichcollectively, the “Rents”) for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted as of the Adjustment Point, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents Date occurs (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at “Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periodsMonth”), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner (ii) Rents from each tenants who are not more than thirty (30) days delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the calendar month immediately preceding the month in which prior to the Closing occursDate (the “Prior Month”), as set forth Merger Sub and Target shall prorate, on an accrual basis, and Merger Sub shall provide Target with a credit for (x) all unpaid Rents from tenants for the Prior Month; and (y) Target’s pro rata share of the total unpaid Rents for the Closing Month, based upon the number of days in such listmonth, (cand Target shall provide a credit to Merger Sub for Merger Sub’s pro rata share of the collected Rents received for the Closing Month; provided, however, such delinquent rents shall be subject to re-proration and a credit to Target pursuant to Section 9(a)(ii) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month if received after the month in which the Closing. There shall be no credit granted by Merger Sub to Target at Closing occurs and (d) then, for delinquent Rents for periods prior to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such listPrior Month. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner From and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereofDate, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee Merger Sub shall have the right from time to time receive all such Rents and Target shall have no further rights following Closing with respect to such Rents. Merger Sub has no obligation to collect any past due Rent and shall have the right to pursue (or not pursue) collection, discount or eliminate any past due Rent in its sole and absolute discretion. To the extent Merger Sub collects any Rents allocable to the period prior to the Closing until 90 days after receipt Date, including any past due Rent, Merger Sub shall retain the same, but such Rent so collected (less any costs of collection incurred by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice Merger Sub) shall be subject to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) re-proration as relate to such delinquencies set forth in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statementsSection 9(a)(ii).
Appears in 1 contract
Rents. Rents as If any rents under any of the leases for space at the Property shall be accrued and when collected. Any Rents unpaid at the Closing Date, the rents collected by Buyer on or after the Closing Date shall first be applied to rents due at the time of such collection on behalf of Owner or after the Closing Date (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager unless the Closing occurs on or other agent acting for Owner or any such successor) subsequent prior to the Closing (whether due and payable fifth day of a calendar month, in which case prior to or subsequent such application, the rents shall first be applied to the Adjustment Point) shall be adjusted month of Closing and prorated between Seller and Buyer), with the balance payable to the Seller to the extent of rents delinquent as of the Adjustment Point, and Closing Date; provided that Buyer shall use commercially reasonable diligent efforts to collect any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rentsdelinquent rents, but shall not include be required to institute any proceeding or incur any material out-of-pocket costs to collect any rents accrued and unpaid on the regular fees payable Closing Date. Seller, at its sole cost, shall be entitled to any property manager of bring such actions or proceedings against tenants provided that such actions do not affect such tenant's possession. The parties hereby acknowledge that circumstances related to the COVID-19 outbreak, including, without limitation, restrictions imposed under COVID-19 Orders (as defined below), may adversely affect the ability to collect rent due under the leases affecting the Property, including, any delinquent rents (whether prior to or following the payroll costs Closing), and Buyer hereby acknowledges and agrees, that Seller makes no guaranties in connection with the collection of any rent (whether prior to or following the Closing), including, without limitation, as a result of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver COVID-19 pandemic. By proceeding to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit Buyer assumes the risk that applicable COVID-19 Orders could affect Buyer’s ability to collect, or cause exercise remedies to be submitted to collect, rent due under the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statementsleases.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Rents. Rents All fixed and additional rentals under the Tenant Leases (including gross-up amounts for excise taxes), refundable security deposits (except as hereinafter provided) and when collected. Any Rents collected by or on behalf other tenant charges shall be prorated between Buyer and Seller, Seller being charged and credited for all of Owner (which, for purposes of this Section 6.1, shall include Rents collected by any successor the same allocable to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent the period up to the Closing (whether due Date and payable prior to or subsequent Buyer being charged and credited for all of the same allocable to the Adjustment Point) period from and after the Closing Date. Seller shall be adjusted as of the Adjustment Point, entitled to retain all paid rent and any portion thereof properly other items allocable to periods the period prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, Closing. Seller shall be paid by Purchaser deliver or Owner provide a credit in an amount equal to the Sellers within fifteen (15) days all prepaid rentals for periods from and after the end of the calendar month in Closing Date and all refundable cash security deposits listed on Exhibit K which received by are not applied or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If forfeited prior to the Closing Owner shall have collected Date pursuant to the Tenant Leases to Buyer on the Closing Date. Except for any Rents Government Tenant (whichdefined herein below), for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) rents which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point Closing Date shall not be prorated on the Closing Date. Buyer shall include such delinquencies in its normal billing and shall diligently pursue the collection thereof in good faith after the Closing Date (without giving effect but Buyer shall not be required to litigate or declare a default under any unexpired grace periodsTenant Lease), which list shall set forth . To the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents extent Buyer receives rents (or income in connection with other tenant charges) on or after the specific components of RentsClosing Date, such payments shall be applied first toward the rent (or other tenant charge) owed to Buyer in connection with the Tenant Leases for which such payment are received, then for rent (or other tenant charges) for the month in which the Closing occurs, and then to any delinquent rents (bor other tenant charges) nextowed to Seller, up with Seller’s share thereof being promptly delivered to $50,000 Seller; provided, however, that any year-end or similar reconciliation payment shall be allocated in accordance with the charges (and in the aggregate case of tenant reimbursements, the underlying expenses) in Seller’s and Buyer’s respective periods of ownership. Buyer may not waive any delinquent rents nor modify any Tenant Lease after the Closing Date so as to reduce or otherwise affect amounts owed thereunder for all Tenants any period in which Seller is entitled to receive a share of charges or amounts without first obtaining Seller’s written consent. Seller hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts owing to Seller for which Seller did not receive a credit at Closing (but shall not be deemed entitled to be terminate such Tenant Lease or such tenant’s right to possession); provided however (x) in no event shall Seller have the right to pursue any remedy against Whole Foods or Long’s Drugs (CVS) (but Seller shall have the right to contact such tenants to demand payment of Rents delinquent amounts); and (or the specific component of rentsy) which are delinquent (without giving effect with respect to any unexpired grace periodstenants for whom Seller seeks amounts due it that Seller is allowed to pursue hereunder, Seller shall first provide written notice to Buyer that it intends to collect such amounts (a “Collection Notice”), in which event the Buyer shall have thirty (30) days after receipt of such Collection Notice to collect such amounts in the ordinary course of its business. In the event the amounts pursuant to a Collection Notice are not fully collected within thirty (30) days after Buyer’s receipt of such Collection Notice, Seller may pursue remedies for such sums due it from tenants, provided Seller shall not attempt to terminate any Lease or evict any Tenant. 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 as of the last day of Closing Date, Seller shall retain all rights relating thereto. With respect to any government tenant under a Tenant Lease that customarily pays rent one (1) months in arrears (a “Government Tenant”), Buyer and Seller acknowledge and agree that amounts received after the month immediately preceding Closing Date from such Government Tenant shall first be applied to rent (and other tenant charges) due for the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents then for any delinquent rents (or the specific components other tenant charges) owed to Seller in an total amount not to exceed one (1) month of Rentsrent, then to Buyer for all current rent (and other tenant charges) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the SellersBuyer.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Purchase Agreement (Jones Lang LaSalle Income Property Trust, Inc.)
Rents. Rents as and when collected. Any Purchaser will receive a credit at Closing for all Rents collected by Seller prior to the Closing Date and allocable to the period from and after the Closing based upon the actual number of days in the month; provided, however, Seller shall retain all rights to receive any lease termination payments received from APAC, with respect to the ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Property Property and no portion of the termination payment received from APAC shall be subject to proration. With respect to any unpaid or delinquent Rents existing as of the Closing Date, Purchaser shall remit the same to Seller as, when and only to the extent received, on behalf a tenant-by-tenant basis, monthly, no later than the last day of Owner (whicheach calendar month, and Purchaser shall use commercially reasonable efforts to collect all such delinquent rents for the benefit of Seller, provided, that Purchaser shall not be obligated to terminate a Lease, declare a default under a Lease or bring suit against a tenant therefor, or incur any expense over and above its own regular collection expenses, and, provided, further, that Seller shall not be deemed to waive any right to bring suit against a tenant for any delinquent Rents, but Seller shall have no right to ▇▇▇ to evict any tenants or terminate any Leases. Any Rent received by Seller from and after the Closing Date for any period(s) after the Closing Date promptly shall be remitted to Purchaser. For purposes of this Section 6.1Agreement, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted as of the Adjustment Point, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid received by Purchaser or Owner Seller after Closing shall be applied in the following order:
(i) First, to the Sellers within fifteen (15) days after the end of Rents due but unpaid for the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Date falls;
(ii) Second, to Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited then due and payable to Purchaser by for calendar months following the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the calendar month in which the Closing occursDate falls, but not, for the avoidance of doubt, to prepay any Rents not due and payable at the time such Rent is received;
(biii) nextThird, up to $50,000 in pay any Rents related to the aggregate for all Tenants shall be deemed period prior to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occursDate which have not been previously paid; and
(iv) Fourth, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellersmay direct.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Rents. Rents as Twenty-five percent (25%) of all paid rents, including revenues and when collected. Any Rents collected charges of any kind, together with any other sums paid by or on behalf of Owner the tenant (whichother than security deposit), for purposes of this Section 6.1under the Lease, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted prorated as of the Adjustment PointClosing Date. In the event that, and at the time of Closing, there are any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser past due or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser delinquent rents owing by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager tenant of the Property, the payroll costs of any Distributees shall have the exclusive right to collect such past due or delinquent rents and shall remit to Highwoods in cash to the extent, and only to the extent, that the rents received by the Distributees from the tenant owing past due or delinquent rents exceed the sum of the Sellers'aggregate rents and other sums payable by such tenant for periods from and after the Closing Date to the date of receipt, Owner's or Purchaser's employees or any other internal costs or overhead and then only if Highwoods has notified the Distributees at Closing that the tenant under the Lease is delinquent in its rent as of the SellersClosing Date. The Distributees will make a commercially reasonable good faith effort to collect after Closing any rents which are delinquent and owing to Highwoods at Closing, Owner but the Distributees shall have no obligation to file suit to collect such amounts, provided if the Distributees fail to file suit to collect such amounts after being requested to do so by Highwoods, Highwoods shall have the right to collect all rents owed to Highwoods at the time of Closing, which shall include Highwoods’ filing of suit, if necessary, to collect such amounts. In the event that, after Closing, Highwoods receives any payments of rent or Purchaser.
6.1.1 other sums due from the tenant under the Lease that relate to periods from and after Closing, Highwoods shall promptly forward to the Distributees such payments. It is agreed by the Distributees that the sums to be paid by the tenant referred to in this Section 7(e)(iii) shall include all property operation costs “pass throughs” for the years 2004 and 2005 not paid on a monthly basis, but rather at the end of a calendar year after being invoiced therefor. These sums shall be provided and paid to Highwoods and the Distributees, as applicable, when paid by the tenant under the Lease. The Sellers Distributees shall use reasonable efforts to invoice the tenant for “pass throughs” as promptly as is practicable after Closing (but in no event shall the Distributees be required to do so until allowed under the Lease), provided Highwoods must furnish to the Distributees all applicable information regarding the amount of “pass through” operating expenses to be paid by the tenant under the Lease for the calendar year 2004. During the period after Closing, the Distributees shall deliver to Purchaser at Closing a list of Highwoods any and all Tenants that are delinquent in payment of Rents rents accrued but uncollected as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, Date to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts subsequently collected by or on behalf of Owner from each Tenant whichthe Distributees, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shallthe Distributees receive such rents, if due shall apply rents received after Closing to the Sellers pursuant extent the same are delinquent first to payment of current Rent then due, and thereafter to delinquent rents (other than “true up” payments received from the tenant attributable to a year-end reconciliation of actual and budgeted pass-through payments which shall be allocated between Highwoods and the Distributees pro rata in accordance with their respective period of ownership as set forth in this Section 7(e)(iv) below) but only after rent due and owing to the provisions Distributees have been paid in full, including any delinquent rent. If any security deposits are in the form of subsection 6.1.1a letter of credit, be paid by Owner Highwoods shall assign its interest in the letter of credit to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted Distributees (to the Sellers, within 30 days after extent assignable) and deliver the end original letter of each calendar quarter up credit to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, Distributees at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statementsClosing.
Appears in 1 contract
Rents. Rents as All collected rents and when collected. Any Rents collected by or on behalf of Owner (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to payments from tenants under the Closing (whether due and payable prior to or subsequent to the Adjustment Point) leases shall be adjusted prorated between Contributor and Beacon as of the Adjustment Point, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If day prior to the Closing Owner Date. Contributor shall have be entitled to all rents (including any percentage rent, additional rent and any accrued tax and operating expense reimbursements and escalations), charges, and other revenue of any kind attributable to any period under the Leases prior to but not including the Closing Date. Beacon shall be entitled to all rents (including any percentage rent, additional rent and any accrued tax and operating expense reimbursements and escalations), charges and other revenue of any kind attributable to any period under the Leases on and after the Closing Date. Rents and expense escalations or other reimbursements due landlord under the Leases not collected any Rents as of the Closing Date shall not be prorated at the time of Closing, but Beacon shall make a good faith effort to collect the same on Contributor's behalf and to tender the same to Contributor upon receipt (whichwhich obligation of Beacon shall survive the Closing and not be merged therein); PROVIDED, for HOWEVER, that all rents, escalations and other reimbursements due landlord under the purposes of this Section 6.1, shall include Rents Leases collected by any agent acting Beacon on or after the Closing Date shall first be applied to all amounts due under the Leases at the time of collection for Ownerpost-Closing periods (I.E., current rents and sums due Beacon as the current owner and landlord) which are properly allocable in whole or in part with the balance (if any) payable to periods subsequent Contributor, but only to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net extent of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closingamounts delinquent and actually due Contributor. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but Beacon shall not include have an exclusive right to collect the regular fees payable sums due Contributor under the Leases and Contributor hereby retains its rights to pursue any property manager tenant under the Leases for sums due Contributor for periods attributable to Contributor's ownership of the Property; PROVIDED, HOWEVER, that Contributor shall not be permitted to commence or pursue any legal proceedings against any tenant seeking eviction of such tenant or the payroll costs of any termination of the Sellers', Ownerunderlying lease. Contributor's or Purchaser's employees or any other internal costs or overhead of rights under the Sellers, Owner or Purchaser.
6.1.1 The Sellers immediately preceding sentence shall deliver to Purchaser at survive the Closing and not be merged therein. Beacon shall receive a list of all Tenants that are delinquent in payment of Rents as of credit against the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, Consideration for pre-paid rentals held by Contributor covering the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellerspost-Closing.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Contribution Agreement (Beacon Capital Partners Inc)
Rents. Rents as As additional and when collectedcollateral security for the payment of the Debt and cumulative of any and all rights and remedies herein provided for, Grantor hereby absolutely and presently assigns to Beneficiary Grantor's right, title and interest (if any) in all existing and future Rents. Any Rents collected Grantor hereby grants to Beneficiary the sole, exclusive and immediate right, without taking possession of the Trust Property, to demand, collect (by suit or on behalf otherwise), receive and give valid and sufficient receipts for any and all of Owner (whichsaid Rents, for purposes which purpose Grantor does hereby irrevocably make, constitute and appoint Beneficiary its attorney-in-fact with full power to appoint substitutes or a trustee to accomplish such purpose (which power of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) attorney shall be adjusted irrevocable so long as any portion of the Adjustment PointDebt is outstanding, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be coupled with an interest, shall survive the voluntary or involuntary dissolution of Grantor and shall not be affected by any disability or incapacity suffered by Grantor subsequent to the date hereof). Beneficiary shall be without liability for any loss which may arise from a failure or inability to collect Rents, proceeds or other payments. However, until the occurrence and continuance of an Event of Default under this Deed of Trust or under any other of the Loan Documents, Grantor shall have a license to collect, receive, use and enjoy the Rents when due and prepayments thereof for not more than one (1) month prior to the due date thereof. Upon the occurrence and continuance of an Event of Default, Grantor's license shall automatically terminate without notice to Grantor and Beneficiary may thereafter, without taking possession of the Trust Property, collect the Rents itself or by an agent or receiver. From and after the termination of such license, Grantor shall be the agent of Beneficiary in collection of the Rents, and all of the Rents so collected by Grantor shall be held in trust by Grantor for the sole and exclusive benefit of Beneficiary, and Grantor shall, within three (3) business days after receipt of any Rents, pay the same to Beneficiary to be applied by Beneficiary as hereinafter set forth. Neither the demand for or collection of Rents by Beneficiary shall constitute any assumption by Beneficiary of any obligations under any agreement relating thereto. Beneficiary is obligated to account only for such Rents as are actually collected or received by Beneficiary. Grantor irrevocably agrees and consents that the respective payor▇ ▇▇ ▇▇e Rents shall, upon demand and notice from Beneficiary of the occurrence and continuance of an Event of Default, pay said Rents to Beneficiary without liability to determine the actual existence of any Event of Default claimed by Beneficiary. Grantor hereby waives any right, claim or demand which Grantor may now or hereafter have against any such payor by reason of such payment of Rents (to Beneficiary, and any such payment shall discharge such payor's obligation to make such payment to Grantor. All Rents collected or received by Beneficiary may be applied against all expenses of collection, including, without limitation, reasonable attorneys' fees, against costs of operation and management of the specific component of rents) which are delinquent (without giving effect Trust Property and against the Debt, in whatever order or priority as to any unexpired grace periods) as of the last day items so mentioned as Beneficiary directs in its sole subjective discretion and without regard to the adequacy of its security. Neither the month immediately preceding exercise by Beneficiary of any rights under this Section nor the month in which application of any Rents to the Closing occurs, as set forth on such list, (c) next Debt shall cure or be deemed to be in payment a waiver of any Event of Default. The assignment of Rents (hereinabove granted shall continue in full force and effect during any period of foreclosure or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, redemption with respect to the extent not already applied pursuant to clause (b) Trust Property. Grantor has executed an Assignment of this sentence, be deemed to be in payment Leases and Rents dated of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by even ▇▇▇▇ Sellers pursuant to subsection 6.1.1 ▇▇rewith (the "Assignment") in favor of Beneficiary covering all of the right, title and the amount thereofinterest of Grantor, asas landlord, when lessor or licensor, in and to any Leases. All rights and remedies granted to Beneficiary under the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, Assignment shall be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up addition to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as cumulative of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time rights and remedies granted to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required Beneficiary hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Deed of Trust and Security Agreement (Cornerstone Realty Income Trust Inc)
Rents. Rents as under the Leases, including fixed rent, additional rent and when collected. Any Rents collected by or on behalf of Owner operating expense pass-throughs (whichcollectively, for purposes of this Section 6.1"RENTS"), shall include be addressed in the manner set forth in this subsection. All prepaid Rents collected by for any successor to Owner and by any property manager or other agent acting for Owner or any such successor) period subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted as of the Adjustment Point, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, Date shall be credited to Purchaser by the Sellers Buyer at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of All collected Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants occurs shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) prorated as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Date. All Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) due but uncollected as of the last day Closing Date (the "DELINQUENT RENTS") shall not be prorated at Closing, but shall be paid to the party entitled to receive such Delinquent Rents upon receipt of same by either Seller or Buyer after Closing. Buyer agrees to use good faith and commercially reasonable efforts to collect Delinquent Rents from each tenant remaining in possession of its space under a Lease. Any and all amounts received by Buyer after the Closing Date from any party owing Delinquent Rents shall be paid and applied as follows: first; to Buyer's reasonable collection costs (including reasonable attorneys' fees) incurred (after the Closing Date only); second, to Buyer for Rents due for the then current month; third, to Buyer for due but unpaid Rents accruing after the Closing Date, to be applied in the inverse of the month immediately preceding order incurred (i.e., the month in which the Closing occursmost recently incurred Rents paid first); fourth, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to Delinquent Rents for the month in which the Closing occurs (which sums shall, upon such collection, be prorated between Seller and Buyer as adjusted as of though collected prior to Closing); and finally, to Seller for Delinquent Rents for the Adjustment Point) or any period prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser month of Closing. The parties agree that they shall cause Owner provide a final accounting and any successors to Owner to exert reasonable efforts for a period reconciliation of two (2) years all Delinquent Rents within 180 days after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by OwnerClosing. In no event Buyer shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order not have an exclusive right to collect any such delinquencies.
6.1.3 Following sums due Seller from tenants under the Closing, Purchaser shall submit or cause Leases and Seller hereby retains the right to be submitted pursue any tenant under the Leases for any sums due Seller for periods attributable to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as Seller's ownership of the Adjustment Point remain outstandingProperty; provided, a statement which sets forth all collections made by however, Seller (i) shall be required to notify Buyer in writing of Seller's intention to commence or on behalf of Owner from pursue any legal proceedings, and (ii) shall not be permitted to commence or pursue any legal proceedings against any tenant at the Tenants which owe such delinquencies through the end Property seeking eviction of such calendar quarter. The Sellers tenant or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers termination of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statementsunderlying Lease.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Rents. Rents as All paid rents, including revenues and when collected. Any Rents collected charges of any kind, together with any other sums paid by or on behalf of Owner the tenant (whichother than security deposit), for purposes of this Section 6.1under the Lease, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted prorated as of the Adjustment PointDate of Closing. In the event that, and at the time of Closing, there are any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser past due or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser delinquent rents owing by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager tenant of the Property, G-T Gateway shall have the payroll costs of any exclusive right to collect such past due or delinquent rents and shall remit to WSI in cash to the extent, and only to the extent, that the rents received by G-T Gateway from the tenant owing past due or delinquent rents exceed the sum of the Sellers'aggregate rents and other sums payable by such tenant for periods from and after the Date of Closing to the date of receipt, Owner's or Purchaser's employees or any other internal costs or overhead and then only if WSI has notified G-T Gateway at Closing that the tenant under the Lease is delinquent in its rent as of the SellersDate of Closing. G-T Gateway will make a commercially reasonable good faith effort to collect after Closing any rents which are delinquent and owing to WSI at Closing, Owner but G-T Gateway shall have no obligation to file suit to collect such amounts, provided if G-T Gateway fails to file suit to collect such amounts after being requested to do so by WSI, WSI shall have the right to collect all rents owed to WSI at the time of Closing, which shall include WSI’s filing of suit, if necessary, to collect such amounts. In the event that, after Closing, WSI or Purchaser.
6.1.1 The Sellers WSI, II receives any payments of rent or other sums due from the tenant under the Lease that relate to periods from and after Closing, WSI shall promptly forward or cause WSI, II to forward to G-T Gateway such payments. It is agreed by G-T Gateway that the sums to be paid by the tenant referred to in this Section 6(e)(iii) shall include all property operation costs “pass throughs” for the year 2004 not paid on a monthly basis, but rather at the end of a calendar year after being invoiced therefor. These sums shall be provided and paid to WSI or WSI, II and G-T Gateway when paid by the tenant under the Lease. G-T Gateway shall use reasonable efforts to invoice the tenant for “pass throughs” as promptly as is practicable after Closing (but in no event shall G-T Gateway be required to do so until allowed under the Lease), provided WSI or WSI, II must furnish to G-T Gateway all applicable information regarding the amount of “pass through” operating expenses to be paid by the tenant under the Lease for the calendar year 2004. During the period after Closing, G-T Gateway shall deliver to Purchaser at Closing a list WSI for the benefit of WSI, II any and all Tenants that are delinquent in payment of Rents rents accrued but uncollected as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount Date of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts subsequently collected by or on behalf of Owner from each Tenant whichG-T Gateway, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shallG-T Gateway receives such rents, if due shall apply rents received after Closing to the Sellers pursuant extent the same are delinquent first to payment of current Rent then due, and thereafter to delinquent rents (other than “true up” payments received from the tenant attributable to a year-end reconciliation of actual and budgeted pass-through payments which shall be allocated between WSI, II and G-T Gateway pro rata in accordance with their respective period of ownership as set forth in this Section 6(e)(iv) below) but only after rent due and owing to G-T Gateway has been paid in full, including any delinquent rent. If any security deposits are in the form of a letter of credit, WSI or WSI, II, as the case may be, shall assign its interest in the letter of credit to G-T Gateway (to the provisions extent assignable) and deliver the original letter of subsection 6.1.1, be paid by Owner credit to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquenciesG-T Gateway at Closing.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Highwoods Properties Inc)
Rents. Rents as and when collected. Any Rents collected by or on behalf of Owner Purchaser (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successorPurchaser) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted as of the Adjustment Point, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days Equitable promptly after the end of the calendar month in which received collection thereof by or on behalf of OwnerPurchaser, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner Equitable shall have collected collected, or if subsequent to the Closing Equitable shall collect, any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any the Managing Agent or other agent acting for OwnerEquitable) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be 16 credited to Purchaser by the Sellers Equitable at the Closing or, if collected after the Closing, shall be promptly remitted by Equitable to Purchaser. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred by or on behalf of Purchaser or Equitable in collecting any Rents, but shall not include the regular fees payable to any property manager of for the PropertyMalls, the payroll costs of any of the Sellers', OwnerEquitable's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner Equitable or Purchaser.
6.1.1 The Sellers Equitable shall deliver to Purchaser at Closing a list of all Tenants and Adjoining Owners at each Mall that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods)Point, which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance chargesmaintenance, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner Purchaser from each delinquent TenantTenant or Adjoining Owner, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be finally in payment of delinquent Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) in arrears as of the last first day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list; provided, however, that if at the Closing Date any Tenant or Adjoining Owner is more than thirty (30) days in arrears in payment of Rents (or any component of Rents), the first amounts collected by or on behalf of Purchaser from each such Tenant or Adjoining Owner on account of the Rents (or the specific component of Rents) as to which it is so delinquent, net of costs of collection, if any, shall be deemed in payment of such Rents (or such specific component of Rents) then due on account of any month after the month in which the Closing occurs, next in payment of such Rents (or such specific component of Rents) for the month in which the Closing occurs and finally in payment of such Rents (or such specific component of Rents) which are in arrears as of the first day of the month in which the Closing occurs, as set forth on such list. Any amounts collected by or on behalf of Owner Purchaser from each delinquent Tenant or Adjoining Owner which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment 17 Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the SellersEquitable.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two one (21) years year after the Closing to bill b▇▇▇ and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers Equitable pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner Purchaser shall, if due to the Sellers Equitable pursuant to the provisions of subsection 6.1.1, be paid by Owner Purchaser to the Sellers Equitable, net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by OwnerPurchaser. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant or Adjoining Owner in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the SellersEquitable, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 1999, but only so long as any delinquencies that existed as of the Adjustment Point remain outstandingshall be owed to Equitable, a statement which sets forth all collections made by or on behalf of Owner Purchaser from the Tenants and Adjoining Owners which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee Equitable shall have the right from time to time following the Closing until 90 days after receipt by the Sellers Equitable of the last quarterly statement required hereunder, at the Sellers' Equitable's expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Simon Debartolo Group Inc)
Rents. Rents as and when collected. Any Rents collected Rents, including without limitation all payments received by or on behalf of Owner (which, for purposes of this Section 6.1, shall include Rents collected by Seller from any successor to Owner and by Tenants under any property manager or other agent acting for Owner or any such successor) subsequent Leases applicable to the Closing (whether due Operating Residence and payable all payments of all Residents under any Resident Agreements received prior to or subsequent to the Adjustment Point) Residence Closing Date shall be adjusted prorated as of the Adjustment Point, applicable Residence Closing Date and any the portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the beginning with such Residence Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, Date shall be credited to Purchaser by the Sellers at the such Residence Closing. As used Any checks for any such rental payments received after such Residence Closing by Seller and belonging in this Section 6.1 their entirety to Purchaser shall be promptly endorsed to Purchaser by 12 18 Seller and promptly transmitted to Purchaser, and any checks for any rental payments received after such Residence Closing by Seller and belonging in part to Seller and in part to Purchaser shall be promptly deposited by Seller and the term "costs part thereof belonging to Purchaser shall be promptly paid to Purchaser and the balance shall be retained by Seller. In the event that on such Residence Closing Date there shall be any unpaid rental payments due under any Lease, then (i) for a period of collection" ninety (90) days after the Residence Closing, any rental payment received by Purchaser with respect to such Lease subsequent to such Residence Closing Date shall mean be applied first to pay the current portion of such rental payment due Seller under such Lease and include the remaining portion of such rental payment, to the extent applicable to a period beginning on or after such Residence Closing Date, shall be retained by Purchaser in satisfaction of amounts owed to it, and (ii) thereafter, Purchaser may apply such amounts first to amounts owed to it. During such ninety (90) day period, Purchaser shall use its reasonable attorneys' fees and other costs incurred efforts in collecting any Rentsthe ordinary course of business to collect for Seller amounts owed to Seller of which it has knowledge, but shall not include the regular fees payable be required to employ counsel or any property manager collection agency or to initiate litigation, ejectment proceeding or use any extraordinary means of the Property, the payroll costs collection. Seller shall at all times be entitled to pursue collection of any of the Sellers'amounts owed to it, Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant cooperate with Seller in order to collect any such delinquenciesconnection therewith.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Alternative Living Services Inc)
Rents. Rents All fixed and additional rentals under the Tenant Leases (including gross-up amounts for excise taxes), refundable security deposits (except as hereinafter provided) and when collected. Any Rents collected by or on behalf other tenant charges shall be prorated between Buyer and Seller, Seller being charged and credited for all of Owner (which, for purposes of this Section 6.1, shall include Rents collected by any successor the same allocable to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent the period up to the Closing (whether due Date and payable prior to or subsequent Buyer being charged and credited for all of the same allocable to the Adjustment Point) period from and after the Closing Date. Seller shall be adjusted as of the Adjustment Point, entitled to retain all paid rent and any portion thereof properly other items allocable to periods the period prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, Closing. Seller shall be paid by Purchaser deliver or Owner provide a credit in an amount equal to the Sellers within fifteen (15) days all prepaid rentals for periods from and after the end of the calendar month in Closing Date and all refundable cash security deposits listed on Exhibit K which received by are not applied or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If forfeited prior to the Closing Owner shall have collected Date pursuant to the Tenant Leases to Buyer on the Closing Date. Except for any Rents Government Tenant (whichdefined herein below), for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) rents which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point Closing Date shall not be prorated on the Closing Date. Buyer shall include such delinquencies in its normal billing and shall diligently pursue the collection thereof in good faith after the Closing Date (without giving effect but Buyer shall not be required to litigate or declare a default under any unexpired grace periodsTenant Lease), which list shall set forth . To the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents extent Buyer receives rents (or income in connection with other tenant charges) on or after the specific components of RentsClosing Date, such payments shall be applied first toward the rent (or other tenant charge) owed to Buyer in connection with the Tenant Leases for which such payment are received, then for rent (or other tenant charges) for the month in which the Closing occurs, and then to any delinquent rents (bor other tenant charges) nextowed to Seller, up with Seller’s share thereof being promptly delivered to $50,000 Seller; provided, however, that any year-end or similar reconciliation payment shall be allocated in accordance with the charges (and in the aggregate case of tenant reimbursements, the underlying expenses) in Seller’s and Buyer’s respective periods of ownership. Buyer may not waive any delinquent rents nor modify any Tenant Lease after the Closing Date so as to reduce or otherwise affect amounts owed thereunder for all Tenants any period in which Seller is entitled to receive a share of charges or amounts without first obtaining Seller’s written consent. Seller hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts owing to Seller for which Seller did not receive a credit at Closing (but shall not be deemed entitled to be terminate such Tenant Lease or such tenant’s right to possession); provided however (x) in no event shall Seller have the right to pursue any remedy against Whole Foods or Long’s Drugs (CVS) (but Seller shall have the right to contact such tenants to demand payment of Rents delinquent amounts); and (or the specific component of rentsy) which are delinquent (without giving effect with respect to any unexpired grace periodstenants for whom Seller seeks amounts due it that Seller is allowed to pursue hereunder, Seller shall first provide written notice to Buyer that it intends to collect such amounts (a “Collection Notice”), in which event the Buyer shall have thirty (30) days after receipt of such Collection Notice to collect such amounts in the ordinary course of its business. In the event the amounts pursuant to a Collection Notice are not fully collected within thirty (30) days after Buyer’s receipt of such Collection Notice, Seller may pursue remedies for such sums due it from tenants, provided Seller shall not attempt to terminate any Lease or evict any Tenant. Buyer shall reasonably cooperate with Seller in any collection efforts hereunder (but shall not be required to litigate or 13 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 as of the last day of Closing Date, Seller shall retain all rights relating thereto. With respect to any government tenant under a Tenant Lease that customarily pays rent one (1) months in arrears (a “Government Tenant”), Buyer and Seller acknowledge and agree that amounts received after the month immediately preceding Closing Date from such Government Tenant shall first be applied to rent (and other tenant charges) due for the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents then for any delinquent rents (or the specific components other tenant charges) owed to Seller in an total amount not to exceed one (1) month of Rentsrent, then to Buyer for all current rent (and other tenant charges) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the SellersBuyer.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Purchase Agreement
Rents. Rents as All fixed and when collectedadditional rentals under the Leases, and other tenant charges. Any Rents collected by Seller shall deliver or provide a credit in an amount equal to all prepaid rentals for periods after the Adjustment Date to Buyer on behalf of Owner (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted Date. Rents which are delinquent as of the Adjustment PointDate shall not be prorated on the Closing Date. Buyer shall include such delinquencies in its normal billing and shall use commercially reasonable efforts to collect the same after the Closing Date (but Buyer shall not be required to litigate or declare a default in any lease). To the extent Buyer receives rents (other than "Additional Amounts", as hereinafter defined) after the Adjustment Date, such payments shall be applied first toward then current rent owed to Buyer in connection with the applicable lease for which such payments are received, and finally any portion excess monies received shall be applied toward the payment of any delinquent rents in the inverse order in which they accrued, with Seller's share thereof properly allocable being promptly delivered to periods Seller. Buyer may not waive any delinquent rents nor modify a lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive a share of charges or amounts without first obtaining Seller's written consent. Common area charges, taxes, operating expense and other similar expense reimbursement obligations of the tenants under the Leases, as well as any percentage payable thereunder (collectively, "Additional Amounts") shall be prorated as of the Adjustment Date. The parties will finalize such Additional Amounts prorations on the Closing Date or as soon as practicable thereafter (but in any event not later than September 15, 1998) In order for the parties to determine the credits and adjustments herein provided for, no later than three (3) business days prior to the Closing Date, Seller will deliver to Buyer (or otherwise make available to Buyer) copies of all relevant portions of its books and records and all back-up or supporting documentation corroborating the amount paid by Seller and the amount received from the tenants in respect of Additional Amounts, and at Closing, Seller shall deliver to Buyer at the Property copies of the same information for each that has audit rights and the ability to challenge any prior year's reconciliations. Seller agrees to cooperate in good faith and with reasonable diligence in providing to Buyer as and when needed copies of all relevant invoices, bills, evidence of payment and other information required by Buyer to make any required post-Closing reconciliations of Additional Amounts. Proration of expense items contained in the calculation of the Additional Amounts shall be made on the basis that Seller shall be entitled to reimbursement of the applicable expenses incurred by Seller (annualized or otherwise appropriately apportioned) on or prior to the Adjustment PointDate. To the extent that, net based on such determinations, Seller has received amounts in excess of costs the amount due Seller, then Buyer shall receive a credit equal to such excess amount on the Closing Date (or if determined thereafter, then Seller shall deliver such amounts to Buyer within fifteen (15) days of collection properly allocable theretosuch determination). To the extent that Seller has received an amount less than the amount so due, if any, Buyer shall be paid by Purchaser or Owner deliver such shortfall amount to the Sellers Seller within fifteen (15) days after such amounts are received from the end respective tenants. The amount of percentage rent to be allocated to Seller with respect to each Tenant Lease for the calendar month lease year (the "Current Lease Year") in which received by or on behalf of Owner, but subject the Closing Date occurs shall be that amount equal to the further provisions amount of this Section 6.1 percentage rent owed by such tenant for the lease year multiplied by a fraction, the numerator of which is the number of days in the case of Rents due such lease year prior to and including the Adjustment PointDate, and the denominator of which is the total number of days in such lease year. If prior Buyer shall receive a credit at Closing equal to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable theretoamount, if any, shall be credited to Purchaser of percentage rent received by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents Seller as of the Adjustment Point (without giving effect Date which is allocable to any unexpired grace periods), which list period of time after the Adjustment Date. Buyer shall set forth the amount of each such delinquency, the period not be obligated to which each such delinquency relates and the nature pay or credit Seller any sum on account of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, proration of percentage rent as aforesaid unless and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed until the percentage rent to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants prorated as aforesaid shall be deemed received by Buyer. Buyer shall reasonably endeavor to collect delinquencies owed to Seller hereunder (but shall not be require to litigate or declare a default in payment any lease); provided, however, that Buyer shall not waive any claims for delinquencies relating to Seller's period of Rents (ownership without Seller's prior written consent. With respect to delinquent rents, Additional Amounts and any other amounts or other rights of any kind respecting tenants who are no longer tenants of the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) Property as of the last day of the month immediately preceding the month in which the Closing occursDate, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, Seller shall retain all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable rights relating thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Rents. Rents All base rent, additional rent and other sums actually paid under the Leases (including, without limitation, amounts owed by Tenants at the Property as periodic estimates of the costs of utilities, insurance, maintenance, repairs and when collected. Any Rents collected by or on behalf of Owner (which, for purposes of this Section 6.1other operating expenses), shall include Rents collected be prorated and apportioned between the respective Sellers and Purchaser at Closing on a per diem basis as of 11:59 P.M. on the Pro Ration Date, provided that delinquent amounts shall not be considered in such calculation. After the Closing Date, payments of monthly base rent and other amounts due under the Leases received by any successor Purchaser shall be applied, first, to Owner current amounts due and by any property manager or other agent acting owing, second, to past-due amounts owing and starting with the most recent delinquency, and third (if and to the extend not paid as a result of the foregoing), to past-due amounts unpaid for Owner or any such successor) subsequent the period prior to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) Date, which amounts shall be adjusted as payable to Sellers after deducting therefrom any of the Adjustment PointPurchaser's reasonable, out of pocket costs of collection, including, without limitation, reasonable attorneys' fees (provided that Purchaser shall use reasonable efforts to collect such amounts using its in-house legal and other personnel). Purchaser will have no obligation to incur any cost or expense or institute any litigation to collect delinquent rents, percentage rents, or other costs or charges owed to Sellers, and Sellers will not exercise any portion thereof properly allocable right to periods prior collect such amounts unless Purchaser fails to use reasonable efforts to do so. If Purchaser fails to use reasonable efforts to collect such delinquent amounts, Sellers shall have the Adjustment Pointright to pursue all rights and remedies against the Tenants to recover any such delinquencies, net of costs of collection properly allocable thereto, if any, except that Sellers shall not be paid by Purchaser or Owner entitled to threaten to dispossess such Tenants but may otherwise institute suit against any Tenant under the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further Leases. The provisions of this Section 6.1 in the case of Rents due 11.4 shall survive Closing.
(1) Purchaser shall receive a credit at Closing for all rents and other charges actually collected prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect relating to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellersperiod after Closing.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Corporate Office Properties Trust)
Rents. Rents as As additional and when collectedcollateral security for the payment of the Debt and cumulative of any and all rights and remedies herein provided for, Grantor hereby absolutely and presently assigns to Beneficiary Grantor's right, title and interest (if any) in all existing and future Rents. Any Rents collected Grantor hereby grants to Beneficiary the sole, exclusive and immediate right, without taking possession of the Trust Property, to demand, collect (by suit or on behalf otherwise), receive and give valid and sufficient receipts for any and all of Owner (whichsaid Rents, for purposes which purpose Grantor does hereby irrevocably make, constitute and appoint Beneficiary its attorney-in-fact with full power to appoint substitutes or a trustee to accomplish such purpose (which power of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) attorney shall be adjusted irrevocable so long as any portion of the Adjustment PointDebt is outstanding, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be coupled with an interest, shall survive the voluntary or involuntary dissolution of Grantor and shall not be affected by any disability or incapacity suffered by Grantor subsequent to the date hereof). Beneficiary shall be without liability for any loss which may arise from a failure or inability to collect Rents, proceeds or other payments. However, until the occurrence and continuance of an Event of Default under this Deed of Trust or under any other of the Loan Documents, Grantor shall have a license to collect, receive, use and enjoy the Rents when due and prepayments thereof for not more than one (1) month prior to the due date thereof. Upon the occurrence and continuance of an Event of Default, Grantor's license shall automatically terminate without notice to Grantor and Beneficiary may thereafter, without taking possession of the Trust Property, collect the Rents itself or by an agent or receiver. From and after the termination of such license, Grantor shall be the agent of Beneficiary in collection of the Rents, and all of the Rents so collected by Grantor shall be held in trust by Grantor for the sole and exclusive benefit of Beneficiary, and Grantor shall, within three (3) business days after receipt of any Rents, pay the same to Beneficiary to be applied by Beneficiary as hereinafter set forth. Neither the demand for or collection of Rents by Beneficiary shall constitute any assumption by Beneficiary of any obligations under any agreement relating thereto. Beneficiary is obligated to account only for such Rents as are actually collected or received by Beneficiary. Grantor irrevocably agrees and consents that the respective payors of the Rents shall, upon demand and notice from Beneficiary of the occurrence and continuance of an Event of Default, pay said Rents to Beneficiary without liability to determine the actual existence of any Event of Default claimed by Beneficiary. Grantor hereby waives any right, claim or demand which Grantor may now or hereafter have against any such payor by reason of such payment of Rents (to Beneficiary, and any such payment shall discharge such payor's obligation to make such payment to Grantor. All Rents collected or received by Beneficiary may be applied against all expenses of collection, including, without limitation, reasonable attorneys' fees, against costs of operation and management of the specific component of rents) which are delinquent (without giving effect Trust Property and against the Debt, in whatever order or priority as to any unexpired grace periods) as of the last day items so mentioned as Beneficiary directs in its sole subjective discretion and without regard to the adequacy of its security. Neither the month immediately preceding exercise by Beneficiary of any rights under this Section nor the month in which application of any Rents to the Closing occurs, as set forth on such list, (c) next Debt shall cure or be deemed to be in payment a waiver of any Event of Default. The assignment of Rents (hereinabove granted shall continue in full force and effect during any period of foreclosure or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, redemption with respect to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such listTrust Property. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇▇▇▇▇ Sellers pursuant to subsection 6.1.1 has executed an Assignment of Leases and Rents dated of even date herewith (the amount thereof"Assignment") in favor of Beneficiary covering all of the right, astitle and interest of Grantor, when as landlord, lessor or licensor, in and to any Leases. All rights and remedies granted to Beneficiary under the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, Assignment shall be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up addition to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as cumulative of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time rights and remedies granted to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required Beneficiary hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Deed of Trust and Security Agreement (Cornerstone Realty Income Trust Inc)
Rents. Rents as Current and when collected. Any Rents collected advance rentals; operating expenses, real estate tax and insurance escalations and adjustments and other charges payable by the tenant under the Tenant Lease (collectively, "Expense Contributions"); utility charges and deposits made by Seller with respect to utilities; and all other items of accrued or on behalf of Owner prepaid income and expenses (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Pointexcept delinquent rents) shall be adjusted as of the Adjustment Point, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or prorated on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter an accrual basis up to and including the calendar quarter ending Proration Date on March 31, 2006 but only so long as any delinquencies that existed as the basis of the Adjustment Point remain outstandingmost recent ascertainable amounts of or other reliable information in respect to each such item of income and expense. When actual Expense Contributions for the year in which Closing occurs are known, Purchaser shall bill the tenant for the additional amount, if any, owed by ▇▇ as a statement result of non-payment or underpayment of the tenant's share of Expense Contributions for the year to which sets forth all collections made by or on behalf of Owner from such Expense Contributions apply under the Tenants which owe such delinquencies through the end Tenant Lease. Upon collection of such calendar quarteramounts, the same shall be prorated between Seller and Purchaser, and Purchaser shall pay Seller all amounts due Seller for the period prior to the Proration Date. The Sellers amount of any refund or their designee credit to the tenant as a result of collection by Seller prior to the Closing Date of payments by the tenant for Expense Contributions which exceed the actual amount of such Expense Contributions owed by the tenant for the period prior to the Closing Date shall be paid to Purchaser as soon as reasonably practical after such Expense Contributions are known. Until but not after the first anniversary of the Closing, Seller shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of inspect the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order the Property to verify that Purchaser is remitting to Seller all amounts to be remitted to Seller according to the collections reported terms of this Agreement, and for any other purpose related to Seller's prior ownership of the Property. Notwithstanding the foregoing, if the amounts to be prorated hereunder can be established with certainty at Closing, the appropriate party shall receive credit therefor at Closing, which credit shall be final and in lieu of any proration contemplated hereby. The parties agree that any re-adjustment of the items referenced in this Section 6.5 shall occur within two years after the Closing Date; if not re-adjusted prior to the date two years after the Closing Date, no further re-adjustment thereof shall be thereafter made. All basic rent and other amounts payable by the tenant to landlord under the Tenant Lease will be prorated as of the Proration Date. In the event that on the Closing Date the tenant is delinquent
(i) to Seller for amounts due or accrued from the tenant prior to the Proration Date, then (ii) the balance to Purchaser; if Purchaser recovers any such delinquent amounts, the same shall be distributed in the following order of priority:
(i) to Purchaser for amounts due or Owner accrued from the tenant from and after the Proration Date, then (ii) the balance to Seller. Seller agrees that it shall be responsible for and shall indemnify, defend and hold Purchaser harmless from, and promptly pay when due, all real estate commissions due under the Tenant Lease (but in all events excluding any real estate commissions due and payable with respect to any renewal, extension or expansion of the Tenant Lease which may occur subsequent to the Closing, which shall be the sole obligation of Purchaser). In addition, Seller shall be responsible for and promptly pay when due any successor of Owner) in such quarterly statementsremaining tenant improvement allowances which Seller may owe the tenant under the Tenant Lease relating to the initial tenant improvements to be constructed pursuant to the Tenant Lease.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Stratford American Corp)
Rents. Rents as As additional and when collected. Any Rents collected by or on behalf of Owner (which, collateral security for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted as payment of the Adjustment PointDebt and cumulative of any and all rights and remedies herein provided for, Mortgagor hereby absolutely and any portion thereof properly allocable presently assigns to periods prior to the Adjustment Point, net of costs of collection properly allocable theretoMortgagee all existing and future Rents, if any, with respect to the Mortgaged Property. Mortgagor hereby grants to Mortgagee the sole, exclusive and immediate right, without taking possession of the Mortgaged Property, to demand, collect (by suit or otherwise), receive and give valid and sufficient receipts for any and all of said Rents, for which purpose Mortgagor does hereby irrevocably make, constitute and appoint Mortgagee its attorney-in-fact with full power to appoint substitutes or a trustee to accomplish such purpose (which power of attorney shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end irrevocable so long as any portion of the calendar month in which received by or on behalf of OwnerDebt is outstanding, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment coupled with an interest, shall survive the voluntary or involuntary dissolution of Mortgagor and shall not be affected by any disability or incapacity suffered by Mortgagor subsequent to the date hereof); provided, however, that Mortgagee shall only exercise such power-of-attorney during the continuance of an Event of Default. Mortgagee shall be without liability for any loss that may arise from a failure or inability to collect Rents, proceeds or other payments. However, until the occurrence of a default under this Mortgage that has not been cured within any applicable grace or cure period, Mortgagor shall have a license to collect, receive, use and enjoy the Rents when due and prepayments thereof for not more than one (1) month prior to due date thereof. Upon the occurrence of a default hereunder that has not been cured within any applicable grace or the specific component of rents) which are delinquent (cure period, Mortgagor's license shall automatically terminate without giving effect notice to any unexpired grace periods) as Mortgagor and Mortgagee may thereafter, without taking possession of the last day of Mortgaged Property, collect the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (itself or the specific components of Rents) then due on account of any month by an agent or receiver. From and after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end termination of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.license,
Appears in 1 contract
Sources: Mortgage and Security Agreement (General Host Corp)
Rents. All collected Rents shall be prorated between Seller and Buyer as and when collectedof 12:01 a.m. on the Closing Date. Any Seller shall be entitled to all Rents collected by or on behalf of Owner (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent attributable to the period up to but not including the Closing (whether due and payable prior to or subsequent to the Adjustment Point) Date. Buyer shall be adjusted entitled to all Rents attributable to any period on and after the Closing Date. Rents not collected as of the Adjustment PointClosing Date (including percentage rents) shall not be prorated at the time of Closing. After Closing, and any portion thereof properly allocable Buyer shall make a good faith effort for a period not less than twelve (12) months to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected collect any Rents (which, for the purposes of this Section 6.1, shall include Rents not collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect Closing Date on Seller's behalf and to any unexpired grace periods), which list shall set forth tender the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents same (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, Seller's share thereof computed in accordance with the preceding sentence, are allocable provisions of this Agreement) to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior monthSeller upon receipt, net of costs any adjustments due to Buyer (which obligation of collection properly allocable theretoBuyer shall survive the Closing and not be merged therein); provided, if anyhowever, shall be paid promptly that all Rents collected by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years Buyer on or after the Closing Date shall first be applied to bill all amounts due under the Leases at the time of collection (i.e., current Rents and collect any delinquencies set forth on sums due Buyer as the list delivered by ▇▇▇ Sellers pursuant current owner and landlord) with the balance (if any) payable to subsection 6.1.1 and the amount thereofSeller, as, when and but only to the extent collected by of amounts delinquent and actually due Seller. Seller agrees that the invoicing of delinquent tenants on a monthly basis shall constitute a good faith effort and Buyer shall not be obligated to enforce its rights under the Leases, or on behalf threaten such enforcement, or to bring any proceedings in a court of Owner shalllaw or equity. Buyer shall not have an exclusive right to collect the sums due Seller under the Leases, if and Seller hereby retains its rights to pursue any tenant under the Leases for sums due Seller for periods attributable to Seller's ownership of the Property (including, without limitation, any percentage rent that may be due with respect to any period of time prior to Closing, regardless of when the same is to be paid to the Sellers owner of the Property pursuant to the provisions terms of subsection 6.1.1the applicable Lease); provided, however, that Seller (i) shall be paid by Owner required to notify Buyer in writing of its intention to commence or pursue such legal proceedings; (ii) shall only be permitted to commence or pursue any legal proceedings after the date which is three (3) months after Closing and shall commence such proceeding, if at all, prior to the Sellers net 1st anniversary of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event Closing Date; and (iii) shall Purchaser not be permitted to commence or Owner be obligated to institute pursue any actions or legal proceedings or to seek the against any tenant seeking eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following tenant or the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as termination of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarterunderlying lease. The Sellers or their designee terms of the immediately preceding sentence shall have the right from time to time following survive the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statementsnot be merged therein.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pennsylvania Real Estate Investment Trust)
Rents. Rents as and when collected. Any Rents collected by or on behalf of Owner (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted as of the Adjustment Point, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees All rents and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants under Leases shall be deemed to be applied first to the current rental periods and thereafter to satisfy rental obligations arising from past rental periods (applied in payment inverse order of the date such amounts are due so that such amounts are applied to satisfy later rents before earlier rents). Rents and other charges shall be apportioned as follows:
(or 1) The Reconstituted Partnership shall receive a credit at Closing for all rents and other charges actually collected prior to Closing to the specific component of rents) which are delinquent (without giving effect extent relating to any unexpired grace periodsperiod after Closing.
(2) With respect to rents and other charges uncollected as of the last day Closing and owed by occupants of the month immediately preceding Improvements at Closing for any period prior to Closing, Sellers shall be reimbursed by the month in which Reconstituted Partnership following the Closing occurs, as set forth on Reconstituted Partnership's collection of such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs rents and (d) thencharges, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which they are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, available in accordance with the preceding sentenceprovisions hereof, are allocable as follows: the Reconstituted Partnership shall use reasonable efforts promptly to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior monthcollect such rents and charges, and all such amounts collected, net of reasonable related third-party out of pocket costs of collection properly allocable thereto, if any(excluding "overhead expenses"), shall be paid promptly to Sellers within ten (10) days following the month of collection until the entire amount of such uncollected rents and charges shall have been paid.
(3) With respect to rents and other charges uncollected at Closing and owed by Purchaser non-occupants of the Improvements at Closing for any period before Closing, Sellers shall retain all rights relating thereto (including the right to collect all such rents and charges), and Sellers shall receive no proration credits therefor. Any and all amounts collected by Sellers relating thereto shall be retained by Sellers, and all such amounts received by the Reconstituted Partnership with respect thereto shall be forthwith paid over to Sellers. For the avoidance of doubt, the Reconstituted Partnership will continue to hold all security deposits with respect to the Sellers.
6.1.2 Purchaser shall cause Owner Leases and any successors to Owner to exert reasonable efforts for a period of two (2) years after other amounts that are held by the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed Partnership as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statementsdate hereof.
Appears in 1 contract
Sources: Agreement of Purchase and Sale for Partnership Interests (BioMed Realty Trust Inc)
Rents. All collected Rents as and when collected. Any Rents collected by or on behalf of Owner (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable prior to or subsequent to the Adjustment Point) shall be adjusted prorated between Seller and Buyer as of the Adjustment Point, and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If day prior to the Closing Owner Date. Seller shall have collected be entitled to all Rents attributable to any period to but not including the Closing Date. Buyer shall be entitled to all Rents (which, for attributable to any period on and after the Closing Date. For purposes of this Section 6.1determining each of Buyer's and Seller's pro rata share of percentage rents, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent the amount "attributable" to the Adjustment Point, the portion thereof so allocable to periods subsequent period prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, Closing Date shall be credited equal to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment the aggregate amount of Rents (or the specific components of Rents) such percentage rents actually collected for the month calendar year in which the Closing occurs, occurs multiplied by (b) nexta fraction, up to $50,000 in the aggregate for all Tenants numerator of which shall be deemed the number of days prior to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or Date that the specific components of Rents) then due on account of any month after applicable tenant leases space at the month Property during the calendar year in which the Closing occurs and the denominator of which shall be 365. Except with respect to percentage rents (d) thenwhich shall be prorated as provided hereinbelow), to the extent Rents not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) collected as of the last day Closing Date shall not be prorated at the time of Closing. With respect to percentage rent due from any tenant, Buyer and Seller agree that at Closing estimated percentage rent shall be prorated for the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month calendar year in which the Closing occurs (as adjusted even though the same may not have been collected as of the Adjustment PointClosing) or any based upon the amount of percentage rent due from such tenant for the calendar year immediately prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser calendar year in which the Closing occurs. After Closing, Buyer shall cause Owner make a good faith effort to collect any Rents not collected as of the Closing Date on Seller's behalf and any successors to Owner tender the same to exert reasonable efforts for a period Seller upon receipt (which obligation of two (2) years Buyer shall survive the Closing and not be merged therein); provided, however, that all Rents collected by Buyer on or after the Closing Date shall first be applied to bill all amounts due under the applicable Lease at the time of collection (i.e., current Rents and collect any delinquencies set forth on sums due Buyer as the list delivered by ▇▇▇ Sellers pursuant current owner and landlord) with the balance (if any) payable to subsection 6.1.1 and the amount thereofSeller, as, when and but only to the extent collected by or on behalf of Owner shall, if amounts delinquent and actually due Seller. Buyer shall not have an exclusive right to collect the sums due Seller under the Leases and Seller hereby retains its rights to pursue claims against any tenant under the Leases for sums due with respect to periods prior to the Sellers Closing Date (including, without limitation, any percentage rent that may be due with respect to any period of time prior to Closing, regardless of when the same is to be paid to the owner of the Property pursuant to the provisions terms of subsection 6.1.1the applicable Lease); provided, however, that Seller (i) shall be paid by Owner required to the Sellers net notify Buyer in writing of costs of collection, if any, properly allocable thereto, promptly its intention to commence or pursue such legal proceedings; (ii) shall only be permitted to commence or pursue any legal proceedings after the collection thereof by Owner. In no event date which is three (3) months after Closing; and (iii) shall Purchaser not be permitted to commence or Owner be obligated to institute pursue any actions or legal proceedings or to seek the against any tenant seeking eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following tenant or the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as termination of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarterunderlying lease. The Sellers or their designee terms of the immediately preceding sentence shall have the right from time to time following survive the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statementsnot be merged therein.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Capital Lease Funding Inc)
Rents. All collected Rents shall be prorated between Seller and Buyer as and when collectedof 12:01 a.m. on the Closing Date. Any Seller shall be entitled to all Rents collected by or on behalf of Owner (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent attributable to the period up to but not including the Closing (whether due and payable prior to or subsequent to the Adjustment Point) Date. Buyer shall be adjusted entitled to all Rents attributable to any period on and after the Closing Date. Except with respect to percentage rents (which shall be prorated as provided below), Rents not collected as of the Adjustment PointClosing Date shall not be prorated at the time of Closing. With respect to percentage rent due from any tenant, Buyer and any portion thereof properly allocable to periods prior to the Adjustment PointSeller agree that at Closing, net of costs of collection properly allocable thereto, if any, estimated percentage rent shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of prorated for the calendar month in which received by or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month year in which the Closing occurs (as adjusted even though the same may not have been collected as of the Adjustment PointClosing) or any based upon the amount of percentage rent due from such tenant for the calendar year immediately prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser calendar year in which the Closing occurs. After Closing, Buyer shall cause Owner and any successors to Owner to exert reasonable efforts make a good faith effort for a period not less than six (6) months to collect any Rents not collected as of two the Closing Date on Seller's behalf and to tender the same to Seller upon receipt (2) years which obligation of Buyer shall survive the Closing and not be merged therein); provided, however, that all Rents collected by Buyer on or after the Closing date shall first be applied to bill all amounts due under the Leases at the time of collection (i.e., current Rents and collect any delinquencies set forth on sums due Buyer as the list delivered by ▇▇▇ Sellers pursuant current owner and landlord) with the balance (if any) payable to subsection 6.1.1 and the amount thereofSeller, as, when and but only to the extent collected by of amounts delinquent and actually due Seller. Seller agrees that the invoicing of delinquent tenants on a monthly basis shall constitute a good faith effort and Buyer shall not be obligated to enforce its rights under the Leases, or on behalf threaten such enforcement, or to bring any proceedings in a court of Owner shalllaw or equity. Buyer shall not have an exclusive right to collect the sums due Seller under the Leases, if and Seller hereby retains its rights to pursue any tenant under the Leases for sums due Seller for periods attributable to Seller's ownership of the Property (including, without limitation, any percentage rent that may be due with respect to any period of time prior to Closing, regardless of when the same is to be paid to the Sellers owner of the Property pursuant to the provisions terms of subsection 6.1.1the applicable Lease); provided, however, that Seller (i) shall be paid by Owner required to notify Buyer in writing of its intention to commence or pursue such legal proceedings; (ii) shall only be permitted to commence or pursue any legal proceedings after the date which is three (3) months after Closing and shall commence such proceeding, if at all, prior to the Sellers net 1st anniversary of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event Closing Date; and (iii) shall Purchaser not be permitted to commence or Owner be obligated to institute pursue any actions or legal proceedings or to seek the against any tenant seeking eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following tenant or the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as termination of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarterunderlying lease. The Sellers or their designee terms of the immediately preceding sentence shall have the right from time to time following survive the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statementsnot be merged therein.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pennsylvania Real Estate Investment Trust)
Rents. Rents as (including, without limitation, estimated pass-through payments, payments for common area maintenance reconciliations and when collected. Any Rents all additional charges payable by tenants under the Leases, (collectively, “Rents”)) collected by or on behalf of Owner (which, for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent to the Closing (whether due and payable Seller prior to or subsequent to the Adjustment Point) Closing shall be adjusted prorated as of the Adjustment Point, and any portion thereof properly allocable to periods prior to Closing Date on the Adjustment Point, net basis the number of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of in the calendar month in which received by or on behalf the Closing Date occurs. To the extent there are any Rents owing to Seller as of Owner, but subject the Closing which relate to the further provisions periods of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If time prior to the Closing Owner shall Date, but which have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents not actually been collected by any agent acting for Owner) which are properly allocable in whole Seller as of the Closing (“Delinquent Rents”), Purchaser shall not be obligated to pay to Seller (or in part to periods subsequent to the Adjustment Pointgive Seller a credit for), the portion thereof so allocable to periods subsequent to the Adjustment Point, net amount of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at such Delinquent Rents on the Closing. As used in this Section 6.1 All Rents which are received by Seller or Purchaser after the term "costs of collection" Closing Date shall mean be applied: first, to amounts due and include reasonable attorneys' fees owing to Seller and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) respectively for the month in which the Closing occurs, (b) nextsecond, up to $50,000 in the aggregate amounts due and owing to Purchaser for all Tenants shall be deemed to be in payment periods of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month time from and after the month in which the Closing occurs and (d) thenthird, to the extent not already applied pursuant any other Delinquent Rents due to clause (b) Seller for periods of this sentence, be deemed time prior to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs. Unless Purchaser elects in its sole discretion to pay Seller the applicable Delinquent Rents payable to Seller pursuant hereto, all Purchaser may not waive any Delinquent Rents, nor modify a Lease so as set forth on to reduce any Delinquent Rents which are owed under such listLease, for any period in which Seller is entitled to receive such charges or amounts, without first obtaining Seller’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable Seller and Purchaser hereby agree to promptly remit to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and other the amount thereof, as, when of any Rents received and owing to the extent collected by or on behalf of Owner shall, if due to the Sellers each other pursuant to the provisions of subsection 6.1.1this Section 4.2.4. Notwithstanding the foregoing, “true up” payments received from tenants attributable to a year-end reconciliation of actual and budgeted pass-through payments shall be paid by Owner allocated among Seller and Purchaser pro rata in accordance with their respective period of ownership as set forth in Section 4.2.5 below. Seller shall have the right, after Closing, to proceed against tenants for Rents allocable to the Sellers net period of costs Seller’s ownership of collectionthe Property, including, without limitation, the right to collect (without eviction or termination of a Lease) the same from the tenants and/or third parties responsible for payment of such Delinquent Rents, which right shall include, without limitation, the right to file one or more claims or causes of action that are permitted pursuant to applicable law, but not a claim for eviction. Purchaser agrees that it shall use commercially reasonable efforts to collect all pass-through rents payable by tenants and any Delinquent Rents (provided, however, that Purchaser shall have no obligation to institute legal proceedings, including an action for unlawful detainer, against a tenant owing Delinquent Rents). The amount of any unapplied security deposits under the Leases held by Seller in cash at the time of Closing shall be credited against the Purchase Price; accordingly, Seller shall retain the actual cash deposits. Seller shall also transfer to Purchaser any security provided by a tenant under a Lease that is held in the form of letters of credit or other non-cash forms (the “Letters of Credit”) if anythe same are transferable, properly allocable theretoat Seller’s cost (including Seller’s payment of any third party transfer fees and expenses) to the extent the applicable Lease does not obligate tenant to pay for such costs, promptly fees and expenses. If any of the Letters of Credit are not transferable, Seller shall request the tenants obligated under Letters of Credit to cause new letters of credit to be issued in favor of Purchaser in replacement thereof and in the event such a new letter of credit is not issued in favor of Purchaser by Closing, the parties will nonetheless proceed to the Closing and Purchaser shall diligently pursue such replacement after Closing and Seller shall take all reasonable action, as directed by Seller and at Seller’s expense, in connection with the collection thereof by Ownerpresentment of such Letters of Credit for payment as permitted under the terms of the applicable Lease. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction consideration of any Tenant in order to collect any such delinquencies.
6.1.3 Following the ClosingSeller’s foregoing agreement, Purchaser shall submit indemnify, defend and hold Seller harmless from any liability, damage, loss, cost or cause to be submitted to expense resulting from an alleged wrongful drawing by Purchaser upon any of the Sellers, within 30 days Letters of Credit after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statementsClosing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Banc of California, Inc.)
Rents. Rents as All fixed and when collected. Any Rents collected by or on behalf additional rentals under the Tenant Leases, refundable security deposits and other tenant charges shall be prorated between Buyer and Seller, Seller being charged and credited for all of Owner (which, for purposes of this Section 6.1, shall include Rents collected by any successor the same allocable to Owner and by any property manager or other agent acting for Owner or any such successor) subsequent the period up to the Closing (whether due Date and payable prior to or subsequent Buyer being charged and credited for all of the same allocable to the Adjustment Point) shall be adjusted as of the Adjustment Point, period from and any portion thereof properly allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of Closing Date. Seller shall deliver or provide a credit in an amount equal to all prepaid rentals for periods from and after the calendar month in Closing Date and all refundable security deposits listed on Exhibit M-1 which received by are not applied or on behalf of Owner, but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If forfeited prior to the Closing Owner Date pursuant to the applicable Tenant Leases to Buyer on the Closing Date. At Closing, Seller shall have collected commence the transfer to Buyer of any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) security deposits which are properly allocable held in whole the form of letters of credit (the “SD Letters of Credit”) if the same are transferable at Closing; if any of the SD Letters of Credit are not transferable, Seller shall request the tenants obligated under such SD Letters of Credit to cause new letters of credit to be issued in favor of Buyer in replacement thereof and in the event such existing letter of credit is not transferred or such new letter of credit is not issued in part to periods subsequent to favor of Buyer by Closing, Buyer shall diligently pursue such transfer or replacement, as applicable, after Closing and, until such transfer or issuance, Seller shall take all reasonable action, as directed by Buyer and at Buyer’s expense, in connection with the Adjustment Pointpresentment of such SD Letters of Credit for payment as permitted under the terms of the applicable Tenant Lease, and in consideration of Seller’s agreement as aforesaid, Buyer shall indemnify, defend and hold Seller harmless from any liability, damage, loss, cost or expense arising out of the portion thereof so allocable to periods subsequent to the Adjustment Point, net SD Letters of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at Credit after the Closing. As used Such indemnification shall survive the Closing. Rents that are delinquent as of the Closing Date shall not be prorated on the Closing Date. Buyer shall include such delinquencies in this Section 6.1 its normal billing and shall diligently pursue the term "costs collection thereof in good faith after the Closing Date (but Buyer shall not be required to litigate or declare a default in any Tenant Lease). To the extent Buyer receives rents on or after the Closing Date, such payments shall be applied first toward the payment of collection" then current rent owed to Buyer in connection with the applicable Tenant Lease for which such payments are received, with Seller’s share thereof being promptly delivered to Seller, and any excess monies received shall mean be applied toward any delinquent rents owed to Buyer and include then any excess to Seller. Buyer may not waive any delinquent rents nor modify a Tenant Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive a share of charges or amounts without first obtaining Seller’s written consent. Buyer shall make commercially reasonable attorneys' fees collection efforts with respect to delinquent rents and any other costs incurred in collecting any Rents, amounts owed to Seller hereunder (but shall not include the regular fees payable be required to litigate or declare a default in any property manager 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, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents Property as of the Adjustment Point (without giving effect to any unexpired grace periods)Closing Date, which list Seller shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for retain all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable rights relating thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors to Owner to exert reasonable efforts for a period of two (2) years after the Closing to bill and collect any delinquencies set forth on the list delivered by ▇▇▇ Sellers pursuant to subsection 6.1.1 and the amount thereof, as, when and to the extent collected by or on behalf of Owner shall, if due to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction of any Tenant in order to collect any such delinquencies.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Purchase Agreement (Excelsior Lasalle Property Fund Inc)
Rents. Rents as Rents, additional rents, operating costs, and when collected. Any Rents other income of the Property (other than security deposits) collected by or on behalf Seller from the Tenants for the month of Owner (which, Closing. Purchaser shall also receive a credit against the Purchase Price payable by Purchaser to Seller at Closing for purposes of this Section 6.1, shall include Rents collected by any successor to Owner and by any property manager rents or other agent acting sums (not including security deposits) prepaid by the Tenants for Owner any period following the month of Closing. Purchaser shall receive a credit against the Purchase Price payable by Purchaser to Seller at Closing for the total sum of all cash security deposits paid by Tenants under Leases and not theretofore applied to delinquent rent and other charges payable by the applicable Tenant or any such successor) subsequent returned to the Closing (whether Tenant. Seller hereby acknowledges that Purchaser shall not be legally responsible to Seller for the collection of any uncollected rent or other income under any of the Leases that is past due or otherwise due and payable prior to or subsequent to the Adjustment Point) shall be adjusted as of the Adjustment Point, and any portion thereof properly allocable to periods prior to the Adjustment Point, net date of costs of collection properly allocable thereto, if any, shall be paid by Purchaser or Owner to the Sellers within fifteen (15) days after the end of the calendar month in which received by or on behalf of Owner, Closing but subject to the further provisions of this Section 6.1 in the case of Rents due prior to the Adjustment Point. If prior to the Closing Owner shall have collected any Rents (which, for the purposes of this Section 6.1, shall include Rents collected by any agent acting for Owner) which are properly allocable in whole or in part to periods subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited to Purchaser by the Sellers at the Closing. As used in this Section 6.1 the term "costs of collection" shall mean and include reasonable attorneys' fees and other costs incurred in collecting any Rents, but shall not include the regular fees payable to any property manager of the Property, the payroll costs of any of the Sellers', Owner's or Purchaser's employees or any other internal costs or overhead of the Sellers, Owner or Purchaser.
6.1.1 The Sellers shall deliver to Purchaser at Closing a list of all Tenants that are delinquent in payment of Rents as of the Adjustment Point (without giving effect to any unexpired grace periods), which list shall set forth the amount of each such delinquency, the period to which each such delinquency relates and the nature of the amount due, itemizing separately fixed monthly rent, tax reimbursements, common area maintenance charges, electric charges, charges for tenant services, charges for overtime services, percentage rent and other charges, if any. The first amounts collected by or on behalf of Owner from each delinquent Tenant, net of costs of collection, if any, shall (a) first be deemed to be in payment of Rents (or the specific components of Rents) for the month in which the Closing occurs, (b) next, up to $50,000 in the aggregate for all Tenants shall be deemed to be in payment of Rents (or the specific component of rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, as set forth on such list, (c) next be deemed to be in payment of Rents (or the specific components of Rents) then due on account of any month after the month in which the Closing occurs and (d) then, to the extent not already applied pursuant to clause (b) of this sentence, be deemed to be in payment of Rents (or the specific components of Rents) which are delinquent (without giving effect to any unexpired grace periods) as of the last day of the month immediately preceding the month in which the Closing occurs, all as set forth on such list. Any amounts collected by or on behalf of Owner from each Tenant which, in accordance with the preceding sentence, are allocable to the month in which the Closing occurs (as adjusted as of the Adjustment Point) or any prior month, net of costs of collection properly allocable thereto, if any, shall be paid promptly by Purchaser to the Sellers.
6.1.2 Purchaser shall cause Owner and any successors use commercially reasonable efforts, including sending written demands to Owner to exert reasonable efforts tenants under such Leases, for a period of two ninety (290) years days after the Closing to bill and collect such rent; provided, however, in no event shall Purchaser be obligated to file a lawsuit against any delinquencies set forth Tenant seeking collection of such uncollected rent. Purchaser agrees that if (i) a Tenant is in arrears on the list delivered by ▇▇▇ Sellers pursuant date of Closing in the payment of rent or other charges under such Tenant's Lease, and (ii) upon Purchaser's receipt of any rental or other payment from such Tenant, such Tenant is, or after application of a portion of such payment will be, current under such Lease in the payment of all accrued rental and other charges that become due and payable on the date of Closing or thereafter and in the payment of any other obligations of such Tenant to subsection 6.1.1 and the amount thereofPurchaser, asthen Purchaser shall refund to Seller, when out of and to the extent collected by or on behalf of Owner shallthe portion of such payment remaining after Purchaser deducts therefrom any and all sums due and owing it from such Tenant from and after the date of Closing, if due an amount up to the Sellers pursuant to the provisions of subsection 6.1.1, be paid by Owner to the Sellers net of costs of collection, if any, properly allocable thereto, promptly after the collection thereof by Owner. In no event shall Purchaser or Owner be obligated to institute any actions or proceedings or to seek the eviction full amount of any Tenant in order to collect any such delinquenciesarrearage existing on the date of Closing.
6.1.3 Following the Closing, Purchaser shall submit or cause to be submitted to the Sellers, within 30 days after the end of each calendar quarter up to and including the calendar quarter ending on March 31, 2006 but only so long as any delinquencies that existed as of the Adjustment Point remain outstanding, a statement which sets forth all collections made by or on behalf of Owner from the Tenants which owe such delinquencies through the end of such calendar quarter. The Sellers or their designee shall have the right from time to time following the Closing until 90 days after receipt by the Sellers of the last quarterly statement required hereunder, at the Sellers' expense during business hours and on reasonable prior notice to Purchaser, to examine and audit so much of the books and records of Purchaser or Owner (or any successor of Owner) as relate to such delinquencies in order to verify the collections reported by Purchaser or Owner (or any successor of Owner) in such quarterly statements.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wells Core Office Income Reit Inc)